Nexans Australmold Trading Terms
1.1_In these conditions:
Nexans Australmold means Nexans Australmold, a division of Olex Australia Pty Limited (A.B.N 61 087 542 863) of Building 2/69 Dalton Road, Thomastown VIC 3074.
Consequential Loss means:
whether such loss arises directly or indirectly.
Customer means the customer named in the purchase order;
Defect means any defect of workmanship or materials which is not in accordance with the specification described in the purchase order or other requirements of these conditions;
GST means the goods and services tax that applies in accordance with a New Tax System (Goods and Services) Act 1999 (Cth).
Insolvency Event means, if a Customer:
Products means the products which Nexans Australmold has contracted to supply to the Customer.
Price means the price quoted (if any) and the price appearing on the invoice, whichever is higher.
2. Purchase Orders
2.1_A quotation given by Nexans Australmold to the Customer is not an offer capable of acceptance by the Customer. A contract between Nexans Australmold and the Customer only arises in accordance with clause 2.2.
2.2_Each purchase order constitutes an offer by the Customer to acquire the Products from Nexans Australmold on these conditions to the exclusion of all other conditions. A contract is made only when Nexans Australmold accepts a purchase order at its office, which may be by supplying all or part of the Products ordered. Nexans Australmold may reject any order at its discretion.
3. Status of Conditions
3.1_These conditions replace all previous conditions imposed by Nexans Australmold and apply to the exclusion of any conditions of purchase used by the Customer even if they form part of the Customer’s purchase order. No variation of these conditions binds either party unless confirmed in writing by Nexans Australmold.
4.1_Unless Nexans Australmold states otherwise, the Price of the Product is the price quoted (if any) and the price appearing on the invoice, whichever is higher.
4.2_The Price of the Product includes Nexans Australmold’s standard domestic packaging. Nexans Australmold may make additional charges for export packaging.
4.3_Quotations are subject to change at any time prior to acceptance of the purchase order by Nexans Australmold.
4.4_Unless expressly stated otherwise, the Prices of Products do not include any sales tax, GST or similar taxes or other domestic or foreign government duties, charges and taxes. Where applicable, those duties, charges and taxes will be added to the Price or will be otherwise payable as a separate charge to be paid by the Customer.
4.5_Despite any other provision of the contract, if adverse changes in market conditions occur during the term of this contract which were not foreseeable at the time the purchase order was accepted by Nexans Australmold, which changes would result in hardship to Nexans Australmold if the terms of the contract, including Price, were maintained, the Customer agrees to meet on Nexans Australmold’s request to revise the said terms in a manner that is equitable to both parties and which takes into account the changes in market conditions.
5. Payment and Credit
5.1_Nexans Australmold shall invoice upon delivery of the Products and payment shall be made by the Customer within 30 days of the date of the invoice.
5.2_Nexans Australmold reserves the right to require payment of a deposit prior to delivery.
5.3_On request, the Customer shall provide a bank guarantee in terms and for such amount as acceptable to Nexans Australmold as security for performance of its obligations under this contract. Nexans Australmold shall release and return the security within 14 days of payment of the Price.
5.4_Nexans Australmold may invoice progressively where Products are delivered in instalments.
6. Risk and Title in Products
6.1_Risk in Products passes to the Customer on delivery of the Products to the Customer.
6.2_The Customer acknowledges and agrees that Nexans Australmold holds a purchase money security interest for the purpose of the Personal Property Securities Act 2009 (Cth) until full payment has been made for the Products.
6.3_Title to the Products does not pass until payment in full in cleared funds of all money owed to Nexans Australmold for the Products and all other money owed to Nexans Australmold by the Customer.
Until title to the Products passes to the Customer, the Customer possesses the Products as fiduciary bailee and agent for Nexans Australmold and is only authorised to sell the Products in the ordinary course of business (which does not include sale for less than cost or on conditions). On taking delivery of the Products, the Customer must keep the Products separate from other Products on the Customer’s premises and mark them to show clearly that the Products belong to Nexans Australmold.
If the Customer fails to comply with any of these conditions or Nexans Australmold in its absolute discretion considers that the Customer is in the financial difficulties, Nexans Australmold:
6.4_Until payment in full for the Products and of all other amounts owing by the Customer to Nexans Australmold, if the Customer sells the Products, the Customer must:
Nexans Australmold may trace all proceeds of sale of the Products received by the Customer through the relevant account or any other account maintained by the Customer.
6.5_If, at the time Nexans Australmold seeks to recover the Products, they have been incorporated in any product:
6.6_Clauses 6.3, 6.4 and 6.5 are not intended to create a charge over the Products or any book debts. To the extent that any part of clauses 6.3, 6.4 and 6.5 are construed as creating a charge, the offending words are to be treated as deleted.
6.7_Clauses 6.3, 6.4 and 6.5 do not purport to confer on Nexans Australmold any contractual rights but only serve as confirmation of Nexans Australmold’s rights at law and in equity.
7. Changes in Design or Construction
7.1_Nexans Australmold reserves the right in its sole discretion to make any changes it deems desirable in the design and manufacture of the Products provided that the Products as changed meet the performance specifications, if any.
7.2_Nexans Australmold will be under no obligation to proceed with a change requested by the Customer unless or until a change order acceptable to both parties is signed by Nexans Australmold and the Customer.
8. Limitation of Liability
8.1_The Trade Practices Act 1974 (Cth) (and other legislation) may imply certain conditions and warranties into this contract that cannot be excluded or modified. This contract does not exclude or modify any of those conditions or warranties if to do so would contravene that law or make any part of this contract void.
8.2_Subject to clause 8.1, Nexans Australmold excludes all warranties and conditions that may be implied into this contract and limits its liability for breach of any implied condition or warranty that cannot be excluded to (at its option) the repair or replacement of those Products or reimbursement of the cost of having those Products repaired or replaced.
8.3_Nexans Australmold will use its reasonable endeavours to achieve delivery of the Products by the date nominated in the purchase order for delivery but Nexans Australmold shall have no liability to the Customer for delay in delivery of the Products nor will the Customer be entitled to claim against Nexans Australmold in respect of loss or damage caused by delay in delivery.
a. Subject to clause 8.4(b) and (c), to the extent permitted by law, Nexans Australmold’s liability to the Customer:
(i) under, or arising out of, or in connection with the supply of the Products;
(ii) otherwise at law or in equity including:
shall be limited to one of the following, as determined by Nexans Australmold:
(iii) replacement of the defective Products; or
(iv) payment that shall not exceed 20% of the amount paid to Nexans Australmold for the Products.
b. The limitation in clause 8.4(a) does not apply to claims in respect of personal injury to, illness or death of persons;
c. Despite any other provision of the contract, to the extent permitted by law, Nexans Australmold has no liability to the Customer nor will the Customer be entitled to claim against Nexans Australmold in respect of Consequential Loss:
(i) under, arising out of, or in connection with the supply of the Products;
(ii) otherwise at law or in equity including;
d. This clause shall survive termination or expiry of the contract.
8.5_The Customer acknowledges that it has not relied on any representation made by Nexans Australmold which has not been expressly stated in these conditions.
8.6_The Customer indemnifies Nexans Australmold against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by Nexans Australmold:
9. Delivery and Transport
9.1_Any delivery date stated in the purchase order or otherwise notified is an estimated date only. The Customer acknowledges that it has not relied on any representation made by Nexans Australmold in relation to the date for delivery.
9.2_Delay in delivery of the Products shall not entitle the Customer to terminate the purchase order and the Customer shall not be excused from paying for the Products by reason of any such delay.
9.3_Nexans Australmold reserves the right to deliver the Products in instalments.
9.4_Unless the contract specifies the means by which Products are to be transported, Nexans Australmold will choose the means of transport.
9.5_Nexans Australmold is not obliged to agree to any request to store the Products or to postpone the date for delivery. Nexans Australmold may agree to such a request on terms, including immediate payment of some or all of the Price and payment of reasonable storage charges.
9.6_If Nexans Australmold has requested a bank guarantee under clause 5.3, delivery shall not occur until a bank guarantee in terms acceptable to Nexans Australmold has been submitted.
9.7_Despite any other provision of the contract, Nexans Australmold shall have no liability to the Customer for non delivery or delay in delivery of the Products, nor will the Customer be entitled to claim against Nexans Australmold in respect of loss or damage caused by non delivery or delay in delivery:
(i) by statute to the extent permitted by law;
(ii) in tort for negligence or otherwise, including negligent misrepresentation; or
(iii) on any other basis whatsoever.
9.8_Clause 9.7 shall survive termination or expiry of the contract.
10. Force Majeure
10.1_Any notified times for delivery are estimates only and Nexans Australmold shall not be considered in default in the performance of its obligations under the contract, or be liable to the Customer for any failure to deliver or for delay in delivery of the Products to the extent that such failure or delay is caused by an event of Force Majeure.
10.2_In the event of a delay arising from an event of Force Majeure, the time of performance of contract shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
10.3_For the purposes of clause 10, ‘Force Majeure’ means:
or any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of Nexans Australmold.
11.1_Nexans Australmold warrants the Products to be free of Defects for a period of twelve (12) months from the date of delivery. As to all apparatus and accessories not manufactured by Nexans Australmold which are components of or ancillary to the Products furnished by Nexans Australmold, Nexans Australmold’s only obligation shall be to obtain for the Customer such warranties as are available from the vendors thereof for such period, if obtainable by Nexans Australmold without payment by Nexans Australmold of additional consideration.
11.2_During the warranty period the Customer may give Nexans Australmold a notice identifying a Defect in the Products. The defective Products shall be preserved intact and made available for inspection by Nexans Australmold. Within a reasonable period of receipt of the notice Nexans Australmold may, at its option replace or repair the Products. The Customer acknowledges that the replacement or repair of defective Products or defective parts of Products shall be the Customer’s sole remedy.
11.3_On written request from Nexans Australmold, Products which have been replaced pursuant to clause 11.2 shall be made available to Nexans Australmold and shall be the property of Nexans Australmold.
11.4_The Customer acknowledges and agrees that:
may not provide an accurate representation of the colour, pattern or quality of the Products due to limitations in colour reproduction, the size of the sample, changes in technical specification, technical errors and human error. To the extent permitted by law, Nexans Australmold makes no representation that the Products will match any image or sample provided.
11.5_No Products may be returned to Nexans Australmold without the prior written consent of Nexans Australmold. Such written consent shall not imply any admission by Nexans Australmold that the Products returned are defective. A restocking fee may apply under clause 13.2(d). If Products are returned without the prior written consent of Nexans Australmold, Nexans Australmold may return those Products to the Customer at the Customer’s expense and risk. Any transport costs incurred by the Customer in returning product to Nexans Australmold will be at the Customer’s expense and risk.
11.6_Despite any other provision of the contract, to the extent permitted by law Nexans Australmold has no liability to the Customer nor will the Customer be entitled to claim against Nexans Australmold for loss and damage incurred or sustained by the Customer arising out of or in connection with any Defect, including the cost of rectification of Defects, searching for the cause of any Defect, dismantling, removal, transport, repair, reinstallation, retesting and similar costs:
on any other basis whatsoever.
11.7_Clause 11.6 shall survive termination or expiry of the contract.
11.8_The Customer agrees that no warranty is given under clause 11.1 in respect of Defects caused by:
12. Sunset Date
12.1_All claims under clause 11.2 concerning Defects in the Products must be notified within 1 year from the date of delivery of the Products.
12.2_Any other claims arising out of or in connection with the Products and this contract shall be notified in writing to Nexans Australmold within 30 days from the date of delivery of the Products.
12.3_To the extent permitted by law, Nexans Australmold shall have no liability to the Customer for claims under clause 11.2 or other claims notified after the dates described in clause 12.1 or clause 12.2 as the case may be.
The Customer acknowledges that:
14. Cancellation or Variation of Order
14.1_The Customer may not:
without Nexans Australmold’s written consent, which consent may be withheld in Nexans Australmold’s discretion.
14.2_Any request from the Customer to terminate the order or vary the order as described in clause 14.1 shall be in writing and shall not be effective until the date on which Nexans Australmold gives consent (unless an earlier date is otherwise agreed).
14.3_If an order is terminated or the quantity of the Products to be supplied is reduced, the Customer shall pay Nexans Australmold reasonable and proper charges which shall include:
14.4_The entitlement to payment described in clause 14.3 is in addition to and without prejudice to Nexans Australmold’s other rights.
15. Default by Customer
15.1_If the Customer:
Nexans Australmold reserves the right to:
16. Termination or Suspension for Convenience
16.1_Nexans Australmold may terminate this contract or suspend deliveries of the Products at its convenience. Upon termination or suspension of deliveries for convenience, Nexans Australmold shall not be liable for any claim, loss, damage or expense suffered or incurred by the Customer.
17.1_This contract and the supply of Products by Nexans Australmold to the Customer are governed by and will be construed in accordance with the laws of the State of Victoria.
17.2_The parties irrevocably submit to the authority of the Courts having jurisdiction in the State of Victoria.
17.3_The Vienna Convention for the International Sale of Goods is hereby excluded.
17.4_These conditions together with any purchase order issued in connection with this contract constitutes the entire agreement between the parties and all previous dealings, representations and arrangements are hereby expressly excluded. To the extent of any inconsistency, these conditions take priority over the terms of any purchase order.
17.5_The Customer may not assign its rights or obligations under the contract between Nexans Australmold and the Customer for the supply of Products without Nexans Australmold’s prior written consent, which Nexans Australmold may give or refuse in its sole discretion.
17.6_If any part of this contract is held to be void or unlawful, this contract will be read and enforced as if the void or unlawful provisions have been deleted.
17.7_No failure to exercise or any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on a party granting a waiver unless made in writing