In these Terms and Conditions, the following words have the meanings ascribed to them below:
- AP means Bonnells Supply Pty Limited trading as Auspole Products.
- Buyer means the buyer specified in the schedule, AP credit application or as per the Purchase Order received by AP (customer/client)
- Guarantor means that person (or persons), or entity, specified in the Schedule (if any) who agrees to be liable for the debts of the Buyer on a principal debtor basis as set out in these Terms and Conditions.
- Poles means street lighting and sports lighting poles supplied by AP (including any separate accessories such as bolts and cages designed in conjunction with the poles )to the Buyer and are as described on the invoices, quotation, work authorisation or any other forms as provided by AP to the Buyer.
- Price means, subject to these Terms and Conditions, the cost of the Poles as agreed between AP and the Buyer.
- PPSA means the Personal Property Securities Act 2009 (Cth).
- Security Interest means any:
a. security for payment of money, performance of obligations or protection against default (including a mortgage, bill of sale, charge, lien, pledge, trust, power or title retention arrangement, right of set-off, assignment of income, garnishee order or monetary claim and flawed deposit arrangements);
b. thing or preferential interest or arrangement of any kind giving a person priority or preference over claims of other persons or creditors with respect to any property or asset, and includes any agreement to create any of them or allow them to exist.
- Intellectual Property means all intellectual property rights conferred by law and owned by AP including (without limitation):
a. patents, designs, formulas, plans, designs, drawings, photos, images, specifications or other documents whether in printed form, on the Site or represented in actual homes;
b. copyright, trademark, trade business, company names, business names, websites, URLs or email addresses; and
c. all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
Any instructions received by AP from the Buyer for the supply of Poles and/or the Buyer’s acceptance of Poles supplied by AP will constitute acceptance of these Terms and Conditions.
Upon acceptance of these terms and conditions by the Buyer, these terms and conditions are irrevocable and can only be amended by written agreement between the Buyer and AP, however AP may amend these terms and conditions by providing 7 days’ notice to the Buyer.
The Buyer undertakes to give AP at least fourteen (14) days’ notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
Prices are supplied on AP quote document and are valid for 30 days.
Standard accounts issued by AP are under the terms of full payment on or before day thirty of the following month the Poles were delivered (30 days EOM).
The Buyer may be charged interest on any overdue/delinquent invoices (Interest).
The Interest will be calculated:
a. based on the rate of 5%pa;
b. on that part of an invoice that remains unpaid from time to time; and
c. daily and compounded monthly.
If the Buyer defaults in payment of any invoice when due, the Buyer agrees to indemnify AP from and against all costs and disbursements incurred by AP in pursuing the debt including legal costs on a solicitor and own client basis and AP’s collection agency costs.
All payment claims are made under the Building and Construction Industry Security of Payment Act (NSW) – 1999.
Where a standard account is not set up, an irrevocable letter of credit from an internationally recognised bank is required in conjunction with a purchase order or payment will be received in advance of goods being manufactured and dispatched.
Cancellation of a purchase order for specially manufactured items and special orders are possible up until manufacture of product. AP will provide a cost for work carried out until the point of cancellation. AP will accept the cancellation if the work-to-date invoice is paid in full. Purchase orders cannot be cancelled after the scheduled manufacture date.
AP will, at all times, retain ownership of the Intellectual Property.
It is an essential term of these Terms and Conditions that the Buyer must not:
- Use the Intellectual Property, except for the purpose for which it is provided; or
- do anything that:
a. is inconsistent with AP’s interest in the Intellectual Property; or
b. infringes upon IP’s rights to the Intellectual Property.
All drawings and design calculations remain the property of AP. Supply of drawings will be at the discretion of AP and will be supplied in PDF format only.
All prices quoted include a delivery price to client premises or location as specified by client and at a scheduled time arranged (scheduled time may be arranged closer to expected delivery date). Any additional charges resulting from a delivery not being accepted on the specified site or at the arranged time will be passed on.
The Buyer agrees that delivery of, and risk in, the Poles will take place when the Buyer takes possession of the Poles at the relevant site.
The Buyer must make all arrangements necessary to take delivery of the Poles whenever they are scheduled for delivery.
All items ordered and not collected by the buyer or delayed in delivery by the buyer by 4 weeks from agreed delivery date will be invoiced in full at the standard terms of full payment on or before day thirty of the following month the Poles were invoiced (30 days EOM).
AP will not be liable for any loss or damage incurred or suffered by the Buyer as a result of a failure by AP to deliver the Poles as scheduled.
Inspection & Defects
The Buyer must inspect the Poles on delivery.
Within seventy two (72) hours of delivery, the Buyer must notify AP of any alleged defect, shortage in quantity, damage or failure to comply with the description quote in respect of the Poles.
If the Buyer fails to provide notice within the time period specified above, the Poles will be presumed to be free from any defect or damage.
Where it is agreed by AP and the Buyer that:
- The Poles are defective; and
- The Buyer is entitled to reject them, then AP’s liability is limited to replacing the Poles.
Retention of Title
The Buyer and AP agree that:
- ownership of the Poles will not pass until the Buyer has paid all amounts owing for the Poles,
- where practicable the Poles will be kept separate and identifiable until AP has received payment and all other obligations of the Buyer are met;
- until such time as ownership of the Poles passes from AP to the Buyer, AP may give notice in writing to the Buyer to return the Poles or any of them to AP. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Poles will cease;
- AP may at its discretion recall Poles in transit whether or not delivery has been made; and
- if the Buyer fails to return the Poles to AP then AP or AP’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Poles are situated and take possession of the Poles by any means necessary. Any costs incurred by AP in exercising this right will be a debt due and owing by the Buyer to AP.
In consideration of the APBuyer supplying the Poles to the BuyerAP, by accepting the Poles and until such time as full payment of the Price for the Poles has been received, the Buyer:
- acknowledges that it grants to AP a purchase money security interest (PMSI) as defined by the PPSA and/or Security Interest in the Poles;
- agrees that a PMSI has attached to all Poles supplied now or in the future to the Buyer and that the attachment of the PMSI has in no way been deferred or postponed;
- acknowledges that AP reserves the right to register a financing statement in respect of any Poles supplied by AP to the Buyer pursuant to these terms and conditions;
- must promptly, on request by AP, execute all documents and do anything else reasonably required by AP to ensure that the PMSI and/or Security Interest created by these terms and conditions (if applicable) constitutes a perfected Security Interest under the PPSA over all Poles supplied from time to time; and
- must not agree to allow any person to register a financing statement over any of the Poles supplied by AP without its prior written consent and the Buyer must immediately notify AP if it becomes aware of any person taking steps to register a financing statement in relation to the Poles;
If AP perfects any Security Interest it has in relation to the Poles, the Buyer must not do anything that results in AP having less than the security or priority granted by the PPSA that AP assumed at the time of that perfection.
The Buyer irrevocably grants to AP the right to enter upon the Buyer’s premises, without notice, and without being in any way liable to the Buyer or to any third party, if AP has cause to exercise any of its rights under the PPSA, and the
Buyer indemnifies AP from any claims made by any third party as a result of such exercise.
The Buyer agrees to contract out of, waive or exclude such sections of the PPSA as AP may require, to the extent and subject to those sections being able to be excluded under the law.
Informative Competitive Consistent Reliable
The Buyer expressly agrees to:
- contract out of the enforcement provisions referred to at sections 115(1)(a) to (r) (inclusive) of the PPSA; and
- waive its right to receive a copy of any:
a. financing statement or any financing change statement;
b. verification statement under section 157 of the PPSA; and/or
c. notice in relation to a registration event under section 175 of the PPSA, in respect of the Security Interest created by these terms and conditions.
Australian Consumer Law
Nothing in these Terms and Conditions is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
Defects & Consequences of Default
Without prejudice to any other remedies AP may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), AP may suspend or terminate the supply of Poles to the Buyer and any of its other obligations under these Terms and Conditions.
AP will not be liable to the Buyer for any loss or damage the Buyer suffers because AP exercised its rights under this clause.
Without prejudice to AP’s other remedies at law, AP will be entitled to cancel all or any part of any order of the Buyer which remains unperformed and all amounts owing to AP will, whether or not due for payment, become immediately payable in the event that:
- any money payable to AP becomes overdue, or in AP’s opinion the Buyer will be unable to meet its payments as they fall due;
- the Buyer 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
Guarantee of Indemnity
This clause (Guarantee & Indemnity) applies where a Guarantor has executed these Terms and Conditions.
The Guarantor irrevocably and unconditionally guarantees to AP the due and punctual:
- payment of all monies by the Buyer to AP; and
- performance of all the obligations, undertakings and provisions contained in or implied by these Terms and Conditions on the Buyer.
The Guarantor irrevocably and unconditionally indemnifies AP against all costs, expenses, damages and losses suffered or incurred by AP as a result of:
- any failure by the Buyer to pay in a due and punctual manner any monies in accordance with these terms and conditions; or
- any breach of any of the covenants and conditions contained in or implied by these terms and conditions on the Buyer and the Guarantor.
Security & Charge
Despite anything to the contrary contained herein or any other rights which AP may have:
- where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer 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 AP or AP’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that AP (or AP’s nominee) will be entitled to lodge where appropriate a caveat, which caveat will be released once all payments and other monetary obligations payable hereunder have been met;
- should AP elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor agree to indemnify AP from and against all AP’s costs and disbursements including legal costs on a solicitor and own client basis; and
- the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint AP or AP’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause (Security & Charge).
Warranty for all items supplied is for a period of one year commencing from the date of delivery to site.
For painted and powder coated items, care and maintenance is required in accordance with industry recommendations and guidelines. All painted and powder coated items are to be unpacked within three days of receiving Poles on site to avoid blistering.
All warranties are subject to site nomination including state, suburb and street name. In the event payment is not received on time, AP reserves the right to void any warranties.