1.1 These terms and conditions apply to all goods sold, or services provided, PartMaker Pty. Ltd to the Purchaser unless varied in writing and signed by a duly authorized representative of PartMaker Pty. Ltd.
2.1 Status of price list
The price list of PartMaker Pty. Ltd is not an offer to sell but is an invitation to treat only and PartMaker Pty. Ltd reserves the right to accept or reject in its absolute discretion any orders which may be received by it.
2.2 Price change
The prices shown in the price list are subject to alteration without notice.
2.3 Price of goods sold
If PartMaker Pty. Ltd accepts an order it must supply the goods at the price shown in the price list current when PartMaker Pty. Ltd accepts the order, unless otherwise agreed in writing.
3. Goods and services tax
3.1 In this clause 3:
1. GST means as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended (GST Act) or any replacement or other relevant legislation and regulations;
2. Words or expressions used in this clause which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;
3. Any reference to GST payable by a party includes any corresponding GST payable by the representative member of any GST group of which that party is a member;
4. Any reference to an input tax credit entitlement by a party includes any corresponding input tax credit entitlement by the representative member of any GST group of which that party is a member; and
5. If the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.
3.2 Unless GST is expressly included, the consideration to be paid or provided under any other clause of these terms and conditions for any supply made under or in connection with these terms and conditions (including the price at which the goods are sold) does not include GST.
3.3 To the extent that any supply made under or in connection with these terms and conditions (including the supply of the goods) is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
3.4 To the extent that one party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.
3.5 To the extent that any consideration payable to a party under these terms and conditions is determined by reference to a cost incurred by a party, or is determined by reference to a price, value, sales, revenue or similar amount, the GST exclusive amount of that cost, price, value, sales, revenue or similar amount must be used.
4.1 Delivery of the goods is taken to occur at the time that: (a) the Purchaser or the Purchaser’s nominated carrier takes possession of the goods at PartMaker Pty. Ltd address or (b) PartMaker (or PartMaker Pty. Ltd nominated carrier) delivers the goods to the Purchaser’s nominated address even if the Purchaser is not present at the address.
4.2 The Purchaser must pay the cost of transportation and their insurance in transit. Notwithstanding the above, if the Purchaser requires delivery by overnight transport, air freight, or other special delivery, the costs must be paid by the Purchaser at the same time as, and in addition to, the price.
4.3 If a delivery date is specified that date is an estimate only and PartMaker Pty. Ltd is not liable for any delay in delivery.
4.4 If PartMaker Pty. Ltd is unable to supply the Purchaser’s total order, these terms and conditions continue to apply to the goods supplied.
5.1 The Purchaser must inspect the goods immediately upon delivery and must within 7 days after the date of inspection give written notice to PartMaker Pty. Ltd, with particulars, of any claim that the goods are not in accordance with the contract. If the Purchaser fails to give that notice, then to the extent permitted by statute the goods must be treated as having been accepted by the Purchaser and the Purchaser must pay for the goods in accordance with the provisions of these terms and conditions.
6.1 Payment terms
Payment for goods sold by PartMaker Pty. Ltd to the Purchaser must be made no later 20 days after the date of PartMaker Pty. Ltd’s invoice in respect of the goods, in full and without any set-off or deduction.
6.2 If any amount remains unpaid in respect of an invoice for 14 days after the date that it is due for payment in accordance with clause 6.1, PartMaker Pty. Ltd may:
1. Charge the Purchaser interest on that amount, calculated at the rate specified in clause 6.3, from the date the invoice was due to be paid until the amount is paid in full.
2. Require the Purchaser to reimburse PartMaker Pty. Ltd for all collection costs including legal costs incurred by PartMaker Pty. Ltd calculated on a solicitor and client basis as a consequence of PartMaker Pty. Ltd instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as PartMaker Pty. Ltd in its discretion decides.
6.3 For the purpose of clause 6.2, the rate of interest will be the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) applicable at the date of the invoice.
6.4 Application of payments
Any payments tendered by the Purchaser to PartMaker Pty. Ltd must be applied as follows:
(1) first as reimbursement for any collection costs incurred by PartMaker Pty. Ltd in accordance with clause 6.2(2);
(2) secondly, in payment of any interest charged to the Purchaser in accordance with clause 6.2(1); and
(3) thirdly, in satisfaction or part satisfaction of the oldest portion of the Purchaser’s account.
7.1 The Purchaser must not return any goods which the Purchaser claims are not in accordance with the contract (whether or not the goods are treated as accepted by the Purchaser) unless PartMaker Pty. Ltd has first given its written approval to their return. Their return must then be with freight and cartage prepaid by the Purchaser.
7.2 Goods will not be accepted for return more than six months after the date of their delivery.
7.3 Returns where goods accepted If PartMaker Pty. Ltd has given its written approval to the return of goods treated as accepted under clause 5.1:
(1) PartMaker Pty. Ltd will only give credit for the goods returned if they are in a saleable condition, in their original packaging, and where the goods are delivered in sterile packaging they must be returned with the original packing intact; and
(2) PartMaker Pty. Ltd may charge a handling charge equivalent to 10% of the price of the goods returned, unless the Purchaser is a ‘consumer’ for the purposes of the Competition and Consumer Act 2010 (Cth).
7.4 Returns where goods not accepted
If PartMaker Pty. Ltd has given its written approval to the return of goods which are not treated as accepted by the Purchaser under clause 5.1 PartMaker Pty. Ltd must refund the freight and cartage to the Purchaser if the Purchaser’s claim that the goods are not in
accordance with the contract is found to be valid.
Risk and ins Risk and insurance Risk and insurance Goods supplied by PartMaker Pty. Ltd to the Purchaser are at the Purchaser’s risk immediately on delivery to the Purchaser or into the Purchaser’s custody (whichever is the sooner). The Purchaser must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as it thinks appropriate.
9. Intellectual Property
Where PartMaker Pty. Ltd has designed, drawn or
developed goods for the Purchaser, then the copyright in any designs, drawings and documents shall remain
the property of PartMaker Pty. Ltd.
9.2 The Purchaser warrants that all designs, specifications, or instructions given to PartMaker Pty. Ltd will not cause PartMaker Pty. Ltd to infringe any patent, registered design, or trademark in the execution of the Purchaser’s order and the Purchaser agrees to indemnify PartMaker Pty. Ltd against any action taken by a third party against PartMaker Pty. Ltd in respect of any such infringement.
9.3 The Purchaser agrees that PartMaker Pty. Ltd may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or goods that PartMaker Pty. Ltd has created for the Purchaser.
10. Retention Of Title
10.1 In this clause 9 PPSA means Personal Property Securities Act 2009 (Cth) and terms used in italics have the same meaning as in the PPSA.
10.2 When property passes When property passes
Property in the goods supplied by PartMaker Pty. Ltd to the Purchaser does not pass to the Purchaser until the money owing for those goods, and any other money owing by the Purchaser to PartMaker Pty. Ltd, has been paid.
10.3 Rights of the Purchaser Rights of the Purchaser
Until the goods have been paid for in full, the Purchaser may not sell the goods or use the goods in any process, other than in the ordinary course of its business, in which case the Purchaser grants to PartMaker Pty. Ltd a security interest in either every payment to the Purchaser for the goods or the portion of every payment for process in which the goods are used (both as proceeds of the goods and as original collateral).
10.4 Seller’s authority to inspect and reclaim Seller’s authority to inspect and reclaim The Purchaser irrevocably authorizes PartMaker Pty. Ltd at any time, to enter any premises upon which the goods are stored to enable PartMaker Pty. Ltd to inspect the goods and, if the Purchaser has breached these terms and conditions or , in the reasonable opinion of PartMaker Pty. Ltd has become insolvent, to reclaim
possession of the goods. The Purchaser indemnifies PartMaker Pty. Ltd against any liability to any person in connection with the entry or reclamation.
The Purchaser acknowledges and agrees that a secured party in relation to the goods and any proceeds of the goods, PartMaker Pty. Ltd is entitled to register its interest on the register, and is not
obliged to give any notice, document or information under the PPSA, unless the provision of the notice, document or information is required by the PPSA and cannot be excluded.
11. Exclusions and limitations
11.1 Exclusions of conditions and warranties
To the fullest extent permitted by law, all conditions and warranties implied by law arising out of the supply of the goods by PartMaker Pty. Ltd, are excluded. This clause does not limit or exclude
the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth) or any similar law) where to do so would contravene that statute or cause any part
of this clause to be void.
11.2 Limitation on liability Limitation on liability
To the extent permitted by statute, PartMaker Pty. Ltd’s liability arising from the breach of the conditions or warranties referred to in clause 11.1, if any, is limited to (at PartMaker Pty. Ltd’s option):
(1) the supply by PartMaker Pty. Ltd of equivalent goods; or
(2) the replacement by PartMaker Pty. Ltd of the goods supplied to the Purchaser.
11.3 Exclusion of consequential loss
PartMaker Pty. Ltd will not be liable to the Purchaser or any other person, for any indirect or consequential losses, whether arising in contract or in negligence or any from other cause of action.
12.1 Where goods are supplied to the Purchaser on credit the Purchaser irrevocably authorises PartMaker Pty. Ltd, its employees and agents to make such enquiries as it considers necessary to investigate the credit worthiness of the Purchaser including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Purchaser or any other credit providers (Information Sources Information Sources Information Sources) and the Purchaser authorises the Information Sources to disclose to PartMaker Pty. Ltd all information concerning the Purchaser which is within their
possession and which is requested by PartMaker Pty. Ltd.
13. Force majeure
13.1 If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.
14. Definitions and interpretation
In these terms and conditions:
(1) Corporations Act means Corporations Act 2001 (Cth);
(2) Purchaser means the entity purchasing the goods upon Purchaser these terms and conditions; and
(3) PartMaker Pty. Ltd means PartMaker Pty. Ltd Pty Ltd and any of its related bodies corporate within the meaning of section 50 of the Corporations Act.
(1) Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural
includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party’s executors, administrators,successors and permitted assigns;
(e) a statute, regulation or provision of a statute or
regulation (Statutory Provision Statutory Provision Statutory Provision) includes:
(i) that Statutory Provision as amended or re- enacted from time to time; and
(ii) a statute, regulation or provision enacted in
replacement of that Statutory Provision; and
(f) money is to Australian dollars, unless otherwise
(2) “Including” and similar expressions are not words of
(3) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(4) Headings and any table of contents or index are for
convenience only and do not form part of this document or affect its interpretation.
(5) A provision of this document must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this document or the inclusion of the provision in this document.
(6) If an act must be done on a specified day which is not a business day, it must be done instead on the next business day.
15. Entire understanding Entire understanding
15.1 These terms and conditions:
(1) are the entire agreement and understanding between
PartMaker Pty. Ltd and the Purchaser on everything connected with the subject matter of these terms and conditions; and
(2) supersede any prior agreement or understanding on anything connected with that subject matter.
15.2 PartMaker Pty. Ltd and the Purchaser have entered into these terms and conditions without relying on any representation by the other or any person purporting to represent the other.
16. Governing law and jurisdiction
16.1 The law of Victoria governs these terms and conditions.
16.2 The parties submit to the non-exclusive jurisdiction of the courts of Victoria and of the Commonwealth of Australia.