Terms and Conditions of Sale
All Contracts and dealings between UDS Pty Ltd CAN 093 740 795 (which is referred to as “UDS Pty Ltd” and any Customer relating to any products or services are subject to these Terms and Conditions of Sale (Terms) unless otherwise expressly agreed in writing.
- DEFINITIONS: In these terms: Customer means the party to whom UDS Pty Ltd has supplied its Products, including but not limited to their subsidiaries, affiliates, associated companies, related company successors or assigns. “GST” means any tax or imposition on the supply of goods and services covered by A New Tax System (Goods and Services Tax) Act 1999 Commonwealth (the “GST Act”) as amended from time to time. “Monies owed” means all monies which are owing or payable to UDS Pty Ltd by the Customer for any reason whatsoever. “Event of Default” means any one of the following events (a) the Customer is in breach of these Terms (especially clause 9 & 10) or other agreement with UDS Pty Ltd for supplying UDS Pty Ltd Products: (b) payment for UDS Pty Ltd invoice has not been received by UDS Pty Ltd by the due date payment (c) if the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer; the Customer resolves to appoint an administrator, or a receiver or provisional liquidator or an administrator is appointed; the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; the Customer is deemed unable to pay its debts within the meaning of the Corporations Act 2001 (cth); if the Customer is a natural person, an order is made for the Customer’s bankruptcy or the Customer is bankrupted, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the Customer under administration; (d) the Customer ceases or threatens to cease carrying on business.
- PURCHASE PRICE: UDS Pty Ltd makes all sales at its ruling price at the time of delivery. Prices may be subject to change without notice. Official quotations made by UDS Pty Ltd are valid for thirty (30) days for consumables and fourteen (14) days for machinery from quotation date, after which they may be subject to change without notice.
- PAYMENTS: Unless otherwise specified by UDS Pty Ltd, all payments are due within 30 days for Consumables and 14 days for Machinery from invoice date and all payments are without deduction unless otherwise agreed in writing.
- GST: To the extent that a supply of goods and /or services provided by UDS Pty Ltd, or any other supply, made under or pursuant to this agreement, is a “taxable supply” as defined in the GST Act, UDS Pty Ltd will increase its price in respect of that supply it makes by the amount of GST applicable to the supply.
- INTEREST: UDS Pty Ltd will charge interest on overdue moneys owed at the rate of 15% per annum.
- RESERVATION OF TITLE:
- Ownership or title to the Products (inclusive of any Products whensoever delivered to the Customer) remains with UDS Pty Ltd and does not pass to the Customer until UDS Pty Ltd has received the full payment from the Customer for the Products as shown on the invoice and any outstanding money that the Customer may owe to UDS Pty Ltd at any time on any account;
- Until property and ownership passes to the Customer:
- The Customer will hold the Products as fiduciary bailee and agent for UDS Pty Ltd and must store the products separately from Products not supplied by UDS Pty Ltd and in a manner to enable them to be cross-referenced to particular invoices.
- The Customer agrees not to remove, deface or obliterate any identifying mark and number on any of the Products.
- The Customer shall be fully responsible for any loss or damage to the Products. While the Customer’s debt remains outstanding, the Customer agrees (at the Customer’s expense) to insure the products under an enforceable comprehensive policy for an amount equal to the full insurable value of the Products against fire accident malicious damage and theft and such other risks as UDS Pty Ltd may from time to time require. The Customer shall produce the insurance certificate to UDS Pty Ltd upon request by UDS Pty Ltd. The customer holds the benefit of the Customer’s insurance of the Products on trust for UDS Pty Ltd and must pay to UDS Pty Ltd the proceeds of any insurance in event of the Products being lost, damaged or destroyed.
- if the Products have not been paid for by the due date stated on the invoice, UDS Pty Ltd, its employees and agents are entitled to enter the Customer’s premises or where the Products are located to take possession without liability for trespass or any resulting damage to do all things necessary to recover and repossess to keep and dispose of the Products as UDS Pty Ltd sees fit, and with such force as is necessary. The customer must facilitate UDS Pty Ltd on any repossession.
- If the Products are resold, the sales proceeds of such are the property of UDS Pty Ltd and the Customer holds the proceeds on trust for UDS Pty Ltd and shall record in its book debts owed in respect of such sales. Such part of the book debts and proceeds shall be deemed to equal in dollar terms the amount owed by the Customer to UDS Pty Ltd at the time of receipt of such book debts and proceeds. In addition to clause 6(d), in the event of sale of the Products to any third party by the Customer, the Customer in his position as a fiduciary shall assign to UDS Pty Ltd the benefit of any claim against the third party or any insurance proceed; and
- The customer agrees that a certificate purporting to be signed by an officer of UDS Pty Ltd identifying Products as unpaid for shall be conclusive evidence that the products have not been paid for.
- PPSA: UDS Pty Ltd may take all such steps as it considers advisable to register, protect, perfect record or better secure UDS Pty Ltd position in respect of these Terms or anything arising from these Terms or any agreement with the Customer under the Personal Property Securities Act 2009 (Cth) (PSPSA). The Customer:
- Acknowledges these Terms and any invoice constitutes a security interest in the Products and all proceeds of any such Products for the purposes of the PPSA for payment by the Customer of all indebtedness to UDS Pty Ltd, whether present of future, on an all monies basis on any account whatsoever;
- Grants a security interest to UDS Pty Ltd for all Products (and their proceeds) previously supplied by UDS Pty Ltd to the Customer (if any) and in all future Products supplied by UDS Pty Ltd to the customer and all future proceeds of the sale of the Products held by the Customer pursuant to these Terms;
- Acknowledges that UDS Pty Ltd may register its security interest in the Products (and their proceeds) as a purchase money security interest on the Personal Property Security Register (PPSR);
- Will at the Customer’s cost execute documents and do such further acts and things and provide such further information as may be required by UDS Pty Ltd to enable registration of the security interest granted to UDS Pty Ltd on the PPSR or perfect or correct any registration to the intent that UDS Pty Ltd shall at all times have a security interest in all Products (or their proceeds) which is perfected by registration under the PPSA and which will have priority over all other security interests in the Products (or their proceeds);
- Give UDS Pty Ltd not less than 14 days written notice of any proposed change in the Customer’s details structure management or control(including changes in the Customer’s name/trading name, business practice, CAN/ARBN/ARSN number, address), including where any proposed change or actual change in the Customer’s details, structure management or control information or data impacts the effectiveness of UDS Pty Ltd security registration;
- Shall not consent to or enter into any agreement or do any act or thing which permits any other third party to register a security interest in respect of the Products (or their proceeds) which ranks in priority to UDS Pty Ltd rights as first ranking security holder;
- Will not sell, lease, dispose of, create a security interest or encumbrance in, mortgage or part with possession of the Products (or their proceeds) (or attempt to do so) or permit any lien over the Products (or their proceeds) or assign the Customer’s rights under these Terms or to any supply by UDS Pty Ltd to the Customer;
- Must fully indemnify UDS Pty Ltd for any direct or consequential loss or damage associated with or arising from the Customer’s misleading, deceptive or inaccurate data, information, acts or dealings in respect of the Customer’s obligations pursuant to this clause 7.
- SECURITY FOR PAYMENT: As security for payment of all Monies owed to UDS Pty Ltd, the Customer charges in favor of UDS Pty Ltd:
- By way of a fixed charge all its books of accounts, financial records, goodwill, documents of title and current and later acquired real property, leasehold property and intellectual property; and
- By way of a floating charge, the whole of its other undertakings, property and assets.
- CREDIT LIMIT: The grant of any credit facility and /or the nomination of any credit limit is an indication only of UDS Pty Ltd intention at the time and UDS Pty Ltd may vary or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other person or entity. In order to grant the credit facility, the Customer agrees to provide UDS Pty Ltd a copy of its latest audited financial statement and or other financial details upon request by UDS Pty Ltd at anytime. The customer shall notify UDS Pty Ltd as soon as practicable should there be any change in legal entity, structure or management or control of the Customer’s business. The Customer agrees and/or gives consent to UDS Pty Ltd at anytime to obtain credit reports containing its organisation and/or personal credit information about the directors and/or any Guarantor/s in relation to the credit facility to be provided by UDS Pty Ltd from a credit- reporting agency. The Customer agrees to pay on demand all sums owing in connection with this credit facility in the event the credit facility is withdrawn. All invoices must be paid before the due date.
- DISPUTES: The Customer shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off, unless otherwise agreed by UDS Pty Ltd.
- Any disputes must be notified in writing (“Dispute Notice”) to UDS Pty Ltd before payment due. The Customer must act promptly and in good faith to resolve such disputes.
- All disputes which are not resolved within 30 days of the Dispute Notice will be referred to International Chamber of Commerce and settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Sydney, New South Wales by a single arbitrator and in accordance with NEW South Wales procedural law. The decision of the arbitrator will be final and binds both parties.
- While the dispute is being resolved or arbitrated, the parties must continue to fulfill all the their respective obligations pursuant to these Terms.
- RECOVERY COSTS: The Customer shall pay all costs and expenses incurred by UDS Pty Ltd, its legal advisers, cost of arbitration, mercantile agents and others in respect of anything instituted or being considered to be instituted against the Customer, whether for recovery of Monies owed, possession of any Products or otherwise.
- DEFUALTS: Upon the occurrence of an Event of Default, UDS Pty Ltd is entitled to (inter Alia)
- Claim from the Customer of the recover costs of clause 11;
- Retain all monies paid
- Cease any further deliveries to the Customer and terminate any agreement in relation to Products and/or that have not been delivered to the customer;
- At UDS Pty Ltd discretion take immediate possession of any Product not paid for, without prejudice to any other of its rights and without being liable in any way to any party;
- Without notice to the Customer, withdraw its credit facility and make all Monies owing to UDS Pty Ltd on any account become immediately due and payable.
- STATEMENT BY UDS PTY LTD: A Statement by any officer of UDS Pty Ltd is a fact and conclusive evidence of any matter or thing.
- ORDERS AND DELIVERY: The customer agrees that:
- each order placed shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due;
- When any order is placed, the Customer shall inform UDS Pty Ltd of any facts which might reasonably affect any decision to accept the order and/or grant credit. Any failure to do so shall be deemed to create an inequality of bargaining position, the taking of an unfair advantage of UDS Pty Ltd and to be unconscionable, misleading and deceptive.
- from the time of placing an order (including forward orders), the Customer is obliged to accept and pay for the Products in accordance with these Terms and a cancellation of the order or change in mind on the part of the Customer as the content of the order shall not discharge this obligation to accept the Products and make payment;
- UDS Pty Ltd shall use its best endeavour’s to ensure that the Product is available and the Services are provided to the Customer within the time frame requested by the Customer, but shall not be liable for any loss or damage caused by any delay. The Customer shall not be entitled to reject the Products or services by reason of any delay;
- UDS Pty Ltd may at any time alter specifications in respect of Products without giving notice to the Customer, in the interest of continued Product improvement. An alteration does not entitle the Customer to return Products, cancel an order or otherwise avoid its obligations and liabilities pursuant to these Terms;
- If the Customer alters any order with UDS Pty Ltd, Customer’s deposit will be forfeited and UDS Pty Ltd reserves the right to charge the Customer any associated costs.
- UDS Pty Ltd has no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability for delay, failure or inability to deliver, and at the Customer’s cost and risk in all things;
- UDS Pty Ltd has the right to deliver by installments and each installment shall be deemed to be sold under a separate contract. Failure by UDS Pty Ltd any installment will automatically be deemed to be a back order and will not entitle the Customer to cancel the balance of the order. In the event of the Customer failing to take delivery of any installment, UDS Pty Ltd may elect to cancel the balance of the order;
- Products are deemed delivered as soon as they are ready for delivery to, or collection by the Customer;
- UDS Pty Ltd is entitled to charge and the Customer must pay UDS Pty Ltd Costs and expenses associated with handling and/or holding any Products once ready for delivery and any frustrated delivery costs and expenses incurred by UDS Pty Ltd;
- The risk in the Products shall pass to the Customer upon delivery to the Customer or its agent or to a transport company nominated by the Customer;
- The Customer shall examine the Products immediately after delivery and UDS Pty Ltd shall not be liable for any misdelivery shortage, defect or damage unless UDS Pty Ltd receives details in writing within 7 days of the products delivery date from the Customer.
- TERMS AND CONDITIONS RELATING TO INSTALLATION: UDS Pty Ltd shall not undertake installation or dismantling of Products or equipment as the case may be unless otherwise agreed between UDS Pty Ltd and the Customer. Where the Customer explicitly instructs UDS Pty Ltd to undertake installation/dismantling, the Customer agrees that:
- The Customer is to ensure the safe custody of and minimize the deterioration in the Products and all of UDS Pty Ltd equipment whilst on-site before and after installation. The Customer will protect the Products and all of UDS Pty Ltd equipment by providing covered, secure and waterproof storage facilities. Excess Products and equipment remain the property of UDS Pty Ltd;
- The Customer will immediately prior to installation ensure that the site is safe, healthy, cleared and free of obstruction and have adequate lighting and electricity services for UDS Pty Ltd to use and the Customer will further ensure unless otherwise agreed, that UDS Pty Ltd is able to carry out the installation works during normal working hours;
- The Customer is to provide at no cost to UDS Pty Ltd, labour and materials handling equipment for unloading the Products, transporting them to the installation area and for cleaning the site; and
- It is the responsibility of the Customer to remove from the site any debris resulting from the installation works.
16. RETURNS: The Customer agrees that:
a) UDS Pty Ltd may elect to take back Products in saleable condition, on terms agreed and a re-stocking fee of 15% of invoice value shall apply;
b) Any Product which UDS Pty Ltd has elected to accept back must be returned at the Customer’s cost;
c) UDS Pty Ltd is under no obligation to provide a refund for Products returned; and
d) Custom made, custom processed or custom acquired Products will not be returnable at all.
17. WARRANTY: Subject to the Competition and Consumer Act 2010 and any other relevant legislation, all Products delivered by UDS Pty Ltd are subject to the following warranty conditions provided that the Products are installed within the Commonwealth of Australia. Time stipulations herein commence on delivery of the Product.
a) Within 52 weeks from the commencement of warranty, labour for the repair of the Products shall be free of charge and any component of the Products which fails shall be replaced free-of-charge.
b) within 12 weeks from the date of purchase, any spare part which fails due to manufacturing faults shall be replaced free of charge after return and inspection of the spare part by UDS Pty Ltd.
c) The following are specifically excluded from the warrant: i) Vee- belts, light globes; fuses; ii) hoses and fittings external to the equipment housing; iii) any component which is not genuine and original; iv) any component which was not manufactured or supplied by UDS Pty Ltd; v) any component for which the replacement is not manufactured or supplied by UDS Pty Ltd; vi) Products which are not installed correctly and therefore fall outside the manufacturer’s warranty; vii) faults caused by the misuse, application of undue force, electrical fluctuations, incorrect connection of services, excessive overloading of the equipment, faults caused by or arising from the servicing of the equipment by parties not authorized by UDS Pty Ltd to do so; viii) faults or dysfunctions caused by process controls being programmed or tampered with by any party other than UDS Pty Ltd’s approved agent or contractor; ix) any travelling time, fares, mileage charges and accommodation costs incurred by the Customer by reason of any claim; and x) any consequential loss.
18. LIMITATION OF LIABILITY:
a) UDS Pty Ltd will not be liable for any contingent, consequential, direct, indirect, special or punitive damage or loss whatsoever suffered by the Customer, as a result of any act, omission or statement made by UDS Pty Ltd, its employees, contractors or agents whether due to negligence or otherwise, except that nothing in these Terms limits any liability imposed by any statute unless or to the extent that is lawful to do so.
b) No other term, condition, agreement, warranty, representation or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon UDS Pty Ltd, other than these Terms, is made or given by or on behalf of UDS Pty Ltd and the Customer acknowledges that it will rely on its own knowledge and expertise in selecting any Products for any purpose and any advice or assistance given for or on behalf of UDS Pty Ltd shall be accepted at the Customer’s risk.
c) Where UDS Pty Ltd is not permitted to exclude, restrict, or modify its liability for a breach of a condition or warranty that is implied by any statute or applicable laws but its permitted to limit its liability for the breach of such condition or warranty, UDS Pty Ltd’s liability is limited to the cost of replacement of the subject products.
d) The Customer acknowledges that all Products are sold subject to the manufacturer’s trading terms and conditions and any warranty of the manufacturer.
19. AMENDMENT: UDS Pty Ltd may amend these Terms from time to time.
20. FORCE MAJEURE: UDS Pty Ltd will not be or deemed to be in default or breach of any contract as a result of the effects of Force Majeure. Force Majeure will include any cause beyond the reasonable control of UDS Pty Ltd. This includes but is not limited to unforeseen events such as strikes, fire, flood, adverse non foreseeable weather conditions, or action of government or a port authority.
a) These Terms are governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Victorian Courts;
b) These Terms bind the Customer both personally and as trustee of any trusts which the Customer is trustee; and
c) Any part hereof being a whole part of a clause shall be capable of severance without effecting any other part of these Terms
- d) No terms and conditions sought to be imposed by the Customer upon UDS Pty Ltd shall apply.
- Collect, store, use, disclose and transfer any information disclosed about me or us in the Application provided to UDS Pty Ltd by me or any of us
- Obtain (audited) financial statements, management accounts, further personal information, including consumer and/or commercial credit information, relating to me or any of us from another person or entity for any use reasonably connected with provision of credit or the collection of debt
- Collect, store, use, disclose and transfer any information so disclosed to UDS Pty Ltd by me or any of us in the Application or so obtained by i) Any credit reporting agency or trade credit insurer, ii) The registrar of the Personal Property Securities Register for the purpose of registering a security interest or financial statement in the Personal Property Security Register, iv) The parent of UDS Pty Ltd.
- I and all of us understand that I am/we are entitled upon request to have access to the person information held by UDS Pty Ltd.