TRADING TERMS AND CONDITIONS

BOSS TOOLING PTY LTD (ACN 165 476 648)

ATF BOSS TOOLING DISCRETIONARY TRUST

TRADING TERMS AND CONDITIONS

1. DEFINITIONS

1.1. The Supplier is Boss Tooling Pty Ltd (ACN 165 476 648) as Trustee for Boss Tooling Discretionary Trust of 11/191-195 Greens Road, Dandenong in the State of Victoria 3175.

1.2. The Customer includes any person engaging the Supplier on behalf of and with the authority of the person or entity that the Order is provided for.

1.3. The Order is defined as any request for the supply of Goods by the Customer to the Supplier which has been accepted by the Supplier.

1.4. The Goods are the varied components provided by the Supplier.

1.5. The Services are the machining, programming and CAD design services provided by the Supplier during the course of the provision of the Goods, and the delivery of the Goods to the Customer including any loading, packing, unloading or unpacking.

1.6. Reference to loss and damage includes indirect, reliance, special or consequential loss and/or damage including i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.

1.7. Major failure is as defined under the Competition and Consumer Act 2010 (Cth).

1.8. GST refers to goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.9. The terms “security agreement”, “security interest”, “purchase money security interest”, “commingled goods”, “collateral”, “financing statement”, “financing change statement” are as defined in the Personal Property Securities Act 2009 (Cth).

2. GENERAL

2.1. These terms and conditions together with the Supplier’s quotation, credit application form and the Customer’s written order or purchase order document (if any) constitutes the agreement between the Supplier and the Customer (“the agreement”).

2.2. Any Order is deemed to incorporate these terms and conditions; which may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these terms and conditions will prevail.

2.3. The terms and conditions are binding on the Customer, and the Customer’s heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.

2.4. In these terms and conditions, the singular shall include the plural, the neuter gender shall include the masculine and feminine and words importing persons shall apply to corporations and vice versa.

2.5. Where more than one Customer completes this agreement each shall be liable jointly and severally.

2.6. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these terms and conditions.

2.7. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer in accordance with the terms herein.

2.8. The failure by a party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.

2.9. The Customer acknowledges that the Supplier may detail these terms and conditions on its website. In this event, the terms and conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such terms and conditions and/or amendments.

3. QUOTATIONS AND PLACEMENT OF ORDERS

3.1. Any quotation for the supply of Goods given by the Supplier will expire after thirty (30) days, or as otherwise detailed in the quotation provided.  

3.2. The Supplier does not represent that it will provide any Goods unless such Goods are included in the quotation or the Order.

3.3. A request for Goods may be placed by the Customer with the Supplier either verbally or in writing however the Supplier may require the Customer to provide a written order or purchase order document prior to any Goods being released or dispatched by the Supplier.

3.4. As a condition of acceptance, the Supplier may require the payment of a deposit in respect of the Price and in this event the Supplier may not be deemed to have accepted the Customer’s request for Goods unless or until such deposit has been paid.

3.5. All prices quoted or advertised by the Supplier are based on taxes and statutory charges current at that time.  Should these vary during the date of the Order to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.

3.6. The Supplier reserves its right to increase prices on recurring orders. The Customer acknowledges that such price increases in the Supplier’s costing relating to the order e.g. materials, hourly rates, heat treatment etc.

4. PRICE

4.1. GST will be charged on the Goods provided by the Supplier that attract GST at the applicable rate.

4.2. At the Supplier’s sole discretion, the Price shall be either:

4.2.1. The Supplier’s quoted or advertised Price for the Order; or

4.2.2. As detailed on invoices provided by the Supplier to the Customer in respect of Goods supplied.

5. PROVISION OF THE GOODS AND SERVICES

5.1. The Supplier reserves its right to:

5.1.1. Decline requests for the supply of any Goods requested by the Customer;

5.1.2. Cancel or postpone the delivery of the Goods at its discretion.   

5.2. Delivery of the Goods shall be deemed to be complete when the 5.3. Goods are collected by the Customer or are delivered to the Customer, the Customer’s agent or outsourced courier as nominated by the Supplier and/or Customer.

5.3. If the Customer fails to make all arrangements necessary to take delivery of the Goods the Customer shall, at the discretion of the Supplier, be liable for a $33.00 non-delivery fee and the Supplier shall be entitled, also at its discretion, to charge a reasonable fee for redelivery and storage of the Goods.

5.4. Unless specified to the contrary in the quotation or the Order, the Supplier does not warrant that it will be capable of delivering the Goods on a specific day or at a specific time requested by the Customer.

5.5. Subject to otherwise complying with its obligations the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of delivering the Goods to the Customer.

5.6. The Supplier will not be responsible for delivery unless specifically included within the scope of the Supplier’s provision of the Goods and Services.

5.7. The Customer acknowledges that the provision of inspection reports or certificates are not included within the scope of the Supplier’s provision of the Goods and Services. Inspection reports and/or certificates will only be supplied upon agreement between the Supplier and the Customer, or if the provision of inspection reports and/or certificates was included within the scope of the quotation.

5.8. The Supplier does not provide in-house testing of subcontracting services such as heat treatment, material, coating, coating thickness or any other outsourced subcontracting service that is not machining dimensions. Inspection reports, where applicable, will only be supplied for machining dimensions. If subcontracting services require certification or inspections reports, an additional charge may apply.

5.9. The Supplier is able to supply inspection reports (including heat treatment certificates and material certificates) upon the Customer’s special request. This may incur an additional charge.

6. PAYMENT AND CREDIT POLICY

6.1. Non-Account Customers must make full payment to the Supplier on delivery and/or provision of the Goods unless otherwise specified or agreed between the Parties in writing.

Credit

6.2. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed credit application form.

6.3. On the acceptance by the Supplier of a completed credit application form, Account Customers must make full payment to the Supplier within the credit period specified in the credit application form or agreed between the parties in writing.

6.4. Any credit, or credit limit granted by the Supplier may be revised by the Supplier at any time and at its discretion.

6.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these terms and conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency. 

6.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable. 

Account Customer’s Privacy

6.7. The Customer agrees;

6.7.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.

6.7.2. That the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.

6.7.3. The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (pursuant to the Privacy Act 1988).

7. DEFAULT

7.1. In this clause the “default date” is

7.1.1. The day after the date of delivery of the Goods to the Non-Account Customer; or

7.1.2. The day after the date by which payment of the Supplier’s invoice(s) was due to be made by the Account Customer to the Supplier.

7.2. In this clause the “outstanding balance” is:

7.2.1. The Price of the Order, less any payments made by the Non-Account Customer prior to the default date; or

7.2.2. The sum of the Supplier’s invoices to the Account Customer less any payments made by the Account Customer prior to the default date.

7.3. The Customer will be liable for a dishonoured cheque fee of $40.00 for each cheque issued by the Customer and rejected by the Supplier’s bank.

7.4. A signed statement from a duly authorised representative stating the amount due by the Customer is sufficient proof of the amount owing by the Customer to the Supplier unless proven otherwise by the Customer.

7.5. If the Supplier does not receive the outstanding balance by the default date the Customer will be liable for:

7.5.1. Interest on the outstanding balance from the default date at the rate of twelve per centum (12%) per annum calculated on a daily basis;

7.5.2. An account keeping fee of $15.00 to be charged at the end of each calendar month after the default date until the outstanding balance has been paid;

7.5.3. Any debt collection or recovery costs incurred by the Supplier; and if the Supplier’s debt collection agency (“the agency”) charges commission on a contingency basis then the Customer shall pay as a liquidated debt the commission payable by the Supplier to the agency, at the agency’s prevailing rate as if the agency achieved one hundred per cent recovery.

7.5.4. Any charges reasonably made or claimed by the Supplier’s or the agency’s lawyer for legal costs on the indemnity basis.


8. RISK AND LIABILITY

8.1. The Customer will ensure that there is sufficient and accurate information contained within the design it provides to the Supplier, so as to enable the Supplier to execute the Order.

8.2. The Customer acknowledges that the Supplier is not an engineering firm or designer, and accordingly, will not be liable for any loss and damage or costs incurred as a result of CAD design services provided where the Customer has approved the said design.

8.3. In accordance with paragraph 8.2., the Customer is deemed to have approved a design by way of any of the following actions:

8.3.1. The issuance of a purchase order following the supply of the drawing/design;

8.3.2. Written consent to proceed with the Order following the supply of the drawing/design; and

8.3.3. A signed version of the drawing/design.  

8.4. The Customer will ensure that there is sufficient and accurate information to enable the Supplier to execute the Order, including any special requirements or specifications pertaining to the Order and any special instructions for the storage, packing or delivery of the Goods.

8.5. The Supplier takes no responsibility and will not be liable for any loss and damage or costs as a result of the Goods and/or Services being faulty or not fit for purpose due to insufficient or inaccurate information contained within the design provided by the Customer or otherwise approved by the Customer. The Customer accepts all risk in relation to the Goods (including all risks associated with unloading or unpacking) when the Goods pass into the Customer’s care or control; or that of its nominated carrier or agent.

8.6. In the event that the Supplier offers assistance with design and the design is approved, any aspects of the final product that have not been specifically detailed/stated within the design (and have been assumed based on the Supplier’s technical experience) will be considered acceptable to the Customer.

8.7. The Supplier takes no responsibility for representations made in relation to the Goods by any third party or any delay in the delivery of the Goods by a third-party carrier nominated by the Customer.

8.8. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss and damage incurred as a result of delay, or failure to provide the Goods and/or Services or to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.

8.9. Subject to the Supplier’s warranty for defective Goods, the Supplier’s liability for any loss and damage associated with, arising from or in connection with the supply of the Goods may not exceed the Price of the Order, including but not limited to personal injury and damage to property.

Inspection/Measuring Equipment Capabilities

8.10. The Supplier uses a range of basic measuring equipment that includes good quality verniers, micrometres, measuring slips and dial gauges to carry out machining and inspection processes.

8.11. The Supplier does not have ISO standards and does not carry quality procedures in line with ISO standards.

8.12. While all work is carried out with care and precision within its means, the Supplier cannot guarantee accuracy that requires more advanced measuring equipment.

8.13. The Supplier warrants that all inspection reports are carried out using the above-mentioned equipment.

8.14. As a guide, the Supplier can guarantee:

8.14.1. An inspection tolerance of +/-0.01 for any dimension measurable with a micrometre (up to size 75.0mm); and

8.14.2. An inspection tolerance of +/-0.05 for any dimension measurable with a vernier (size from 75.0mm).

9. WARRANTY

9.1. The Supplier warrants that the Customer’s rights and remedies in the agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.

9.2. The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as may be amended from time to time.

              Warranty for Goods

9.3. Provided that the Customer reports any defect in any Goods supplied, within a period of six (6) months from the supply of the Goods, the Supplier will rectify the defect within a reasonable period of time.  

9.4. The Supplier provides the following warranty to Customers in respect of Goods supplied:

“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

9.5. In respect of all claims under warranty, the Supplier reserves it right to inspect Goods alleged to be defective.

9.6. Where a Customer intends to assert a claim under warranty, the Customer acknowledges that it will deliver up the Goods or otherwise make the Goods readily available for inspection by the Supplier at a mutually-convenient time to be agreed between the parties.

9.7. Where a Customer intends to assert a claim under warranty, the Customer acknowledges that it will provide (in addition to delivering up or making the allegedly defective Goods available for inspection) a written report detailing the problems/issues experienced with the Goods.

9.8. To the extent permitted by law the Supplier’s liability in respect of defective Goods that does not constitute a major failure will be limited to:

9.8.1. The resupply by the Supplier of the defective Goods; or

9.8.2. The refund of the Price paid by the Customer in respect of the defective Goods.

9.9. The Supplier shall not be liable to compensate the Customer for any reasonable delay in rectifying Goods found to be defective or in assessing the Customer’s claim.  

9.10. The Customer warrants that it will use its best endeavours to assist the Supplier with identifying the nature of the defective Service claim.

Claims made under Warranty

9.11. Claims for warranty should be made in one of the following ways:

9.11.1. The Customer must send the claim in writing to the Supplier’s address 11/191-195 Greens Road, Dandenong South, Victoria 3175.

9.11.2. The Customer must email the claim to the Supplier to bosstooling@bigpond.com.

9.11.3. The Customer must contact the Supplier on the Supplier’s business numbers 0410 606 689 or 0488 941 985.

10. AGREED USE

10.1. The Customer will forfeit any rights it may otherwise have against the Supplier for a warranty or breach of consumer guarantee in the event that: 

10.1.1. The Goods are applied for any other use to which the Goods are not intended and/or not in accordance with any applicable manual, or the Supplier’s instructions;

10.1.2. Any alteration or repair to the Goods is carried out other than in accordance with intended alterations and/or is carried out by a person or persons not authorised in advance by the Supplier to carry out such alteration or repair to the Goods.

10.2. The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way and shall indemnify in full the Supplier, its servants and/or agents in relation to all such claims.

11. TERMINATION AND CANCELLATION

Cancellation by Supplier

11.1 The Supplier may cancel any Order to which these terms and conditions apply at any time by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any deposit or sum advanced in respect of the Price. The Supplier shall not be liable for any loss and damage whatsoever arising from such cancellation.

11.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:

11.2.1. Any money payable to the Supplier becomes overdue for payment; or

11.2.2. The Customer 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

11.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cooling off and cancellation by the Customer

11.3. The Customer may cancel any Order placed with the Supplier within twenty-four (24) hours of placing the Order (“the cooling off period”) without incurring any cost or cancellation fee or subject to any other charge. 

11.4. In the event that the Customer cancels the Order outside of any relevant cooling-off period then the Customer shall be liable for any loss and damage suffered by the Supplier; but not exceeding the Price of the Order.

11.5. The Supplier may retain any deposit or other sum paid in respect of the Price of the Order and offset such sum or deposit in satisfaction or partial satisfaction of any loss and damage suffered by the Supplier as a result of the Customer’s late cancellation of the Order.

12. RETENTION OF TITLE FOR GOODS

12.1. Legal and equitable title in the Goods shall remain with the Supplier pending full payment of the Price of the Goods to the Supplier; and the Customer warrants that it:

12.1.1. Holds the Goods as Bailee for the Supplier and shall return the Goods to the Supplier if so requested;

12.1.2. Is responsible for the Goods and is liable to compensate the Supplier for all loss or damage sustained to the Goods whilst they are in the Customer’s possession;

12.1.3. Will maintain insurance in respect of the full replacement value of the Goods;

12.1.4. Will store the Goods separately and in such a manner that it is clearly identified as the property of the Supplier;

12.1.5. Will not allow any person to have or acquire security interest in the Goods whilst the Goods are in the Customer’s possession.

12.2. The Customer may sell and/or use the Goods in the ordinary course of business.

12.3. If the Goods are sold by the Customer before the Customer has paid the Price in full to the Supplier, the Customer shall hold the proceeds of sale in a separate identifiable account on trust for the Supplier and promptly account the Supplier for any such proceeds.

12.4. Notwithstanding the provisions above, the Supplier shall be entitled to issue legal proceedings to recover the Price of the Goods.

13. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

13.1. This agreement is a security agreement for the purposes of the PPSA, which has the effect of creating a security interest in favour of the Supplier over all present and after acquired Goods supplied by the Supplier to the Customer to secure payment of the Price of the Goods including future advances.

13.2. The security interest that the Supplier acquires is a purchase money security interest (“PMSI”) over all present and after acquired Goods including any commingled goods.

13.3. The security interest will continue to apply as an interest in the collateral for the purposes of PPSA with priority over registered or unregistered security interest.

13.4. The Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”) without providing further notice to the Customer.

13.5. The Customer agrees the Supplier is not required to disclose information pertaining to the Supplier’s security interest to an interest party unless required to do pursuant to PPSA or under the general law.

13.6. The Customer agrees and undertakes:

13.6.1. To sign any documents and/or provide further information reasonably required by the Supplier to register a financing statement or a financing change statement on the PPSR;

13.6.2. To indemnify the Supplier for all expenses and/or costs incurred by the Supplier in  registering a financing statement or financing change statement on PPSR including the costs of amending, maintaining, releasing and enforcing any security interests in the Goods;

13.6.3. Not to register and/or make a demand to alter a financing statement in the collateral without prior written consent of the Supplier;

13.6.4. To provide the Supplier with seven (7) days written notice of any change or proposed change to the Customer’s business name, address, contact details or other changes in the Customer’s details registered on the PPSR;

13.6.5. To waive any rights of enforcement under section 115 of the PPSA for collateral not used predominantly for personal, domestic or household purposes;

13.6.6. To waive any rights to receive verification statement in respect of any financial statement or financing change statement under section 157 of the PPSA.

14. SECURITY AND CHARGE

14.1 The Customer hereby charges in favour of the Supplier all his/her estates and interests in real property, including present and future estates or interests, to secure the obligations of the debtor under the agreement.

14.2. The Customer consents to the Supplier lodging a caveat or registering a mortgage over the real property to secure the obligations of the debtor under the agreement.

14.3. The Customer irrevocably appoints the Supplier as the duly constituted attorney of the Customer and to execute in his/her name any documents, including any mortgage of real property or caveat in registrable form.

15. ENTIRE AGREEMENT

15.1 The agreement as defined herein constitutes the whole agreement between the Customer and the Supplier.

15.2 The agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the appropriate courts of Victoria.

15.3 All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by it or on its behalf that are in conflict with any clauses in this document in any way.

15.4. Nothing in these terms and conditions is intended to have the effect of contravening 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.