Terms & Conditions

Roll Form WA Terms and Conditions of sale

• Definitions and interpretation
  • Definitions

Buyer means the purchaser of the Goods, whose details are set out in the invoice and applicant on the credit application.

Goods means the products and, if any, services specified in the invoice.

Guarantor means the guarantor on the credit application.

Roll Form WA means Cobbitty Investments WA Pty Ltd ACN 625 269 258 trading as Roll Form WA, the seller of the Goods whose details are set out in the invoice.

• Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

• General

These conditions (which will only be waived in writing signed by Roll Form WA and Buyer) will prevail over all conditions of the Buyer’s order, to the extent of any inconsistency.

• Terms of sale

All Goods and all other products sold by Roll Form WA are sold on these terms and conditions.

• Roll Form’s quotations

Unless previously withdrawn, Roll Form WA ‘s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. Roll Form WA reserves the right to refuse any order based on this quotation within 5 days after the receipt of the order.

• Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense, even if that cost has been omitted from any quotation.

 

• Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with Roll Form WA within 2 days from the date of receipt of Goods by the Buyer.

• Drawings, etc
  • All specifications, drawings, and particulars of weights and dimensions submitted to Roll Form WA are approximate only and any deviation from any of these things does not vitiate any contract with Roll Form WA or form grounds for any claim against Roll Form WA.
  • Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, Roll Form WA’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Roll Form WA as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
• Performance

Any performance figures given by Roll Form WA are estimates only. Roll Form WA is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

• Delivery
  • Delivery unless otherwise specified shall be affected to any location specified on the invoice
  • Risk passes to the Buyer on delivery where delivery. Once the Goods are delivered to the destination stated in this Order, the risk is transferred to the Buyer whether or not transfer of title occurs on delivery of the Goods.
  • Upon delivery the Buyer must check the Goods and satisfy itself as to the fitness of the Goods for the particular purpose.
  • The delivery times made known to the Buyer are estimates only and Roll Form WA is not liable for late delivery or non-delivery.
  • Roll Form WA will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.

 

 

• Roll Form WA may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
• If Roll Form WA delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
  • this does not constitute a repudiation of the contract of sale formed by these conditions; and
  • the defective instalment is a severable breach that gives rise only to a claim for compensation.
• Loss or damage in transit
  • Roll Form WA is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not Roll Form WA is legally responsible for the actions of that person).
  • Roll Form WA must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer:
    • has notified Roll Form WA and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and
    • serves a claim for compensation on the carrier within 7days of the date of receipt of the Goods.
  • Guarantee
    • Roll Form WA’s liability for Goods manufactured by it is limited to making good any defects. This must be done by repairing the defects or, at Roll Form WA’s option, by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched. This applies so long as:
      • the defects have arisen solely from faulty materials or workmanship;
      • the Goods have not received maltreatment, inattention or interference;
      • accessories of any kind used by the Buyer are manufactured by or approved by Roll Form WA;
      • the seals of any kind on the Goods remain unbroken; and
      • the defective parts are promptly returned free of cost to Roll Form WA.

 

• If the Goods are not manufactured by Roll Form WA, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. Roll Form WA agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to Roll Form WA under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
• Roll Form WA is not liable for, and the Buyer releases Roll Form WA from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by Roll Form WA and the responsibility for any claim has been specifically accepted by Roll Form WA in writing.
• Roll Form WA’s liability under clause 11(c)is limited strictly to the replacement of defective parts in accordance with clause 11(a) of these conditions.
• Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. Roll Form WA is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of Roll Form WA’s negligence or in any way.

• Consumer guarantees

Roll Form WA’s liability for a breach of a condition or warranty implied by part 3-2, division 1 of the Australian Consumer Law (ACL) is limited to:

• in the case of Goods, any one or more of:
  • the replacement of the Goods or the supply of equivalent goods;
  • the repair of the Goods;
  • the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
  • the payment of the cost of having the Goods repaired; or
• in the case of services:
  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.
• Indemnification of suppliers by manufacturers

Roll Form WA’s liability under section 274 of the ACL is expressly limited to a liability to pay to the purchaser an amount equal to:

 

• the cost of replacing the Goods;
• the cost of obtaining equivalent goods; or
• the cost of having the Goods repaired,

whichever is the lowest amount.

• Prices
  • Unless otherwise stated all prices quoted by vendor are exclusive of Goods and Services Tax (GST).
  • Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third-party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
  • If Roll Form WA makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.
• Payment
  • The purchase price for the Goods plus GST where applicable is payable on or before the 30th day date of the invoice (Payment Due Date) unless other terms of payment are agreed in writing between the parties.
  • The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the 5%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.
  • The Buyer must pay to Roll Form WA as a debt due on demand, all legal costs and expenses incurred by Roll Form WA in taking action to recover any outstanding amount not paid by Payment Due Date.
  • All payments are required to be made by the Buyer without set off or counterclaim and without deduction or any withholding. Any amount due to Roll Form WA maybe deducted from any amounts due by Roll Form WA to the Buyer.
• Rights in relation to Goods
  • Prior to title in the Goods passing to the Buyer under the terms of this agreement, the Buyer agrees that:

 

• the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation Roll Form WA owes to the Buyer;
• the Buyer cannot claim any lien over the Goods;
• the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by Roll Form WA; and
• where the Buyer is in actual or constructive possession of the Goods:
  • the Buyer will not deliver them or any document of title to the Goods to any person except as directed by Roll Form WA; and
  • it is in possession of the Goods as a bailee of those Goods and owes Roll Form WA the duties and liabilities of a bailee.
• In connection with the Goods, Roll Form WA states to the Buyer that:
  • Roll Form WA has the right to supply the Goods to the Buyer;
  • the activities of Roll Form WA in supplying the Goods do not infringe the rights of the owner of the Goods (where Roll Form WA is not the owner of the Goods); and
  • if the Goods are not owned by Roll Form WA, Roll Form WA is authorised to supply the Goods to the Buyer.
• Roll Form WA and the Buyer agree that:
  • the property of Roll Form WA in the Goods remains with Roll Form WA until Roll Form WA has been paid in full for the Goods under all individual contracts for the supply of the Goods between Roll Form WA and the Buyer;
  • the Buyer is a bailee of the Goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and
  • pending payment in full for the Goods, the Buyer:
    • must not supply any of the Goods to any person outside of its ordinary or usual course of business;
    • must insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business; and
    • must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.

 

• If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to Roll Form WA, the Buyer agrees that:
  • it holds the proceeds of resupply of the Goods on trust, and as agent, for Roll Form WA immediately when they are receivable or are received;
  • it must either pay the amount of the proceeds of re-supply to Roll Form WA immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for Roll Form WA;
  • any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of Roll Form WA until Roll Form WA is paid in accordance with clause 16(d)(i)when the property in the Goods (including the accessory) passes to the Buyer; and
  • if the Buyer fails to pay for the Goods within the period of credit (if any) extended by Roll Form WA to the Buyer, subject to, and in accordance with, the Personal Property Securities Act (Cth) 2009, Roll Form WA may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that Roll Form WA has an irrevocable licence to do so.]]
• Buyer’s property

Any property of the Buyer under Roll Form WA’s possession, custody or control is completely at the Buyer’s risk as regards loss or damage caused to the property or by it.

• Storage

Roll Form WA reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 14 days of a request by Roll Form WA for such instructions. The parties agree that Roll Form WA may charge for storage from the first day after Roll Form WA requests the Buyer to provide delivery instructions.

• Returned Goods
  • Except for any provisions to the contrary contained in this agreement, Roll Form WA is not under any duty to accept Goods returned by the Buyer. Roll Form WA will do so only on terms to be agreed in writing in each individual case.
  • If Roll Form WA agrees to accept returned Goods from the Buyer under clause 19(a)of this clause, the Buyer must return the Goods to Roll Form WA at Roll Form WA’s place of business referred to at the head of these conditions.

 

• Goods sold

All Goods to be supplied by Roll Form WA to the Buyer are as described on the purchase order agreed by Roll Form WA and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

• Cancellation

No order may be cancelled by the Buyer except with the written consent of Roll Form WA. If there is a cancellation of the order by the Buyer, Roll Form WA has the right to claim indemnity against all losses suffered by Roll Form WA as a result of such cancellation.

• Personal Property Securities Act 2009 (Cth) (PPSA)
  • This agreement is a security agreement.
  • The interest of Roll Form WA in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
  • The Buyer consents to Roll Form WA registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by Roll Form WA to facilitate registration.
  • Until title in the Goods has passed to the Buyer as contemplated by clause 16of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party. The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
  • The Buyer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
  • Roll Form WA and Buyer agree that this agreement and all related information and documents are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. Roll Form WA and Buyer agree that Roll Form WA will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
  • Unless the Goods are used predominantly for personal, domestic or household purposes, Roll Form WA and the Buyer agree that each of the following requirements or rights under the PPSA does not apply to the enforcement of Roll Form WA’s security interest in the Goods or of this agreement:
    • any requirement for Roll Form WA to give the Buyer a notice of removal of accession;

 

 

• any requirement for Roll Form WA to give the Buyer a notice of Roll Form WA’s proposed disposal of the goods;
• any requirement for Roll Form WA to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
• any requirement for Roll Form WA to give the Buyer a statement of account if Roll Form WA does not dispose of the Goods;
• any right the Buyer has to redeem the Goods before Roll Form WA exercises a right of disposal; and
• any right the Buyer has to reinstate this agreement before Roll Form WA exercises a right of disposal of the Goods.

• Expressions defined in the PPSA have the same meaning when used in this agreement.]

• Termination
  • In the absence of any breach of this agreement, either party may terminate this agreement in its absolute discretion with a minimum of 21 days’ written notice to the other party.
  • This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for amalgamation or reconstruction).
  • Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 14 days after receipt of a written notice by the other party requiring rectification of the breach.
  • Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
  • The obligations of the parties that by their nature could be reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
• Place of contract

This agreement shall be governed by and construed in accordance with Western Australian law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction.

 

 

• Charge

The Buyer, Applicant and Guarantor individually charge as beneficial owner all of the Buyer, Applicant and Guarantor’s interest in any land owned by Buyer, Applicant and Guarantor jointly or individually presently owned or which they may hereafter acquire. The Buyer, Applicant and Guarantor further agree that they consent to Roll Form WA registering a subject to claim caveat on the land to secure the performance of the Buyer, Applicant and Guarantor’s obligations set out in these Terms and Conditions.