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TERMS AND CONDITIONS

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Disclosure

EPIC™ is a brand of Industree Group Pty Ltd ABN 83 124 894 033. All transactions will be made to Industree Group Pty Ltd with all statements representing this information.

Definitions

  • “Industree” shall mean Industree Group Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Industree Group Pty Ltd.
  • “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other forms as provided by Industree to the Client.
  • “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
  • “Goods” shall mean Goods supplied by Industree to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Industree to the Client.
  • “Services” shall mean all Services supplied by Industree to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
  • “Price” shall mean the Price payable for the Goods as agreed between Industree and the Client in accordance with clause 4 of this contract.

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

Acceptance

  • Any instructions received by Industree from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Industree shall constitute acceptance of the terms and conditions contained herein.
  • Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
  • Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Industree.
  • The Client shall give Industree not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Industree as a result of the Client’s failure to comply with this clause.
  • Goods are supplied by Industree only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

Price and Payment

  • All transactions are processed in AUD.
  • At Industree’s sole discretion the Price shall be either:
    • as indicated on invoices provided by Industree to the Client in respect of Goods supplied; or
    • Industree’s current price at the date of delivery of the Goods according to Industree’s current Price list; or
    • Industree’s quoted Price (subject to clause 4.2) shall be binding upon Industree provided that the Client shall accept Industree’s quotation in writing within thirty (30) days.
  • Industree reserves the right to change the Price in the event of a variation to Industree’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of hidden or unidentifiable difficulties such as delayed delivery of Goods from Industree’s suppliers, or as a result of increases to Industree in the cost of materials and labour or as a result of fluctuations in foreign currency rates of exchange and/or international freight and insurance charges for foreign-sourced components) will be charged for on the basis of Industree’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
  • Industree may submit detailed progress payment claims in accordance with Industree’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
  • At Industree’s sole discretion a deposit may be required.
  • At Industree’s sole discretion:
    • payment shall be due on delivery of the Goods; or
    • payment shall be due before delivery of the Goods; or
    • payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
  • Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  • Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Industree.
  • GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery of Goods

  • At Industree’s sole discretion delivery of the Goods shall take place when:
    • the Client takes possession of the Goods at Industree’s address; or
    • the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Industree or Industree’s nominated carrier); or
    • the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
  • At Industree’s sole discretion the costs of delivery are:
    • in addition to the Price; or
    • for the Client’s account.
  • The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Industree shall be entitled to charge a reasonable fee for redelivery.
  • Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
  • Industree may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  • The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
    • such discrepancy in quantity shall not exceed five percent (5%), and
    • the Price shall be adjusted pro-rata to the discrepancy.
  • The failure of Industree to deliver shall not entitle either party to treat this contract as repudiated.
  • Industree shall not be liable for any loss or damage whatsoever due to failure by Industree to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Industree.

Risk

  • If Industree retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
  • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Industree is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Industree is sufficient evidence of Industree’s rights to receive the insurance proceeds without the need for any person dealing with Industree to make further enquiries.

Title

  • Industree and the Client agree that ownership of the Goods shall not pass until:
    • the Client has paid Industree all amounts owing for the particular Goods; and
    • the Client has met all other obligations due by the Client to Industree in respect of all contracts between Industree and the Client.
  • Receipt by Industree of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Industree’s ownership or rights in respect of the Goods shall continue.
  • It is further agreed that:
    • where practicable the Goods shall be kept separate and identifiable until Industree shall have received payment and all other obligations of the Client are met; and
    • until such time as ownership of the Goods shall pass from Industree to the Client Industree may give notice in writing to the Client to return the Goods or any of them to Industree. Upon such notice, the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
    • Industree shall have the right of stopping the Goods in transit whether or not delivery has been made; and
    • if the Client fails to return the Goods to Industree then Industree or Industree’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
    • the Client is only a bailee of the Goods and until such time as Industree has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Industree for the Goods, on trust for Industree; and
    • the Client shall not deal with the money of Industree in any way which may be adverse to Industree; and
    • the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Industree; and
    • Industree can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
    • until such time that ownership in the Goods passes to the Client if the Goods are converted into other products, the parties agree that Industree will be the owner of the end products.

Defects

The Client shall inspect the Goods on delivery and shall within thirty (30) days of delivery (time being of the essence) notify Industree of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Industree an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Industree has agreed in writing that the Client is entitled to reject, Industree’s liability is limited to either (at Industree’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (Cwlth) or the Fair Trading Acts of the relevant state or territories of Australia and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

Returns

  • Returns will only be accepted provided that:
    • the Client has complied with the provisions of clause 8.1; and
    • Industree has provided written authorisation for the return of the Goods; and
    • the Goods are returned at the Client’s cost within thirty (30) days of the delivery date; and
    • Industree will not be liable for Goods which have not been stored or used in a proper manner; and
    • the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
  • Industree may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.

Warranty

For Goods not manufactured by Industree, the warranty shall be the current warranty provided by the manufacturer of the Goods. Industree shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. Intellectual Property The Client hereby authorises Industree to utilise images of the Goods designed or drawn by Industree in advertising, marketing, or competition material by Industree.

Default and Consequences of Default

  • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Industree’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  • In the event that the Client’s payment is dishonoured for any reason, the Client shall be liable for any dishonour fees incurred by Industree.
  • If the Client defaults in payment of any invoice when due, the Client shall indemnify Industree from and against all costs and disbursements incurred by Industree in pursuing the debt including legal costs on a solicitor and own client basis and Industree’s collection agency costs.
  • Without prejudice to any other remedies, Industree may have, if at any time the Client is in breach of any obligation (including those relating to payment) Industree may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Industree will not be liable to the Client for any loss or damage the Client suffers because Industree has exercised its rights under this clause.
  • If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
  • Without prejudice to Industree’s other remedies at law Industree shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Industree shall, whether or not due for payment, become immediately payable in the event that:
    • any money payable to Industree becomes overdue, or in Industree’s opinion the Client will be unable to meet its payments as they fall due; or
    • the Client 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
    • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Security and Charge

Despite anything to the contrary contained herein or any other rights which Industree may have howsoever:

  • where the Client and/or the Guarantor (if any) is the owner of the land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to Industree or Industree’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Industree (or Industree’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
  • should Industree elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Industree from and against all Industree’s costs and disbursements including legal costs on a solicitor and own client basis.
  • the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Industree or Industree’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.

Cancellation

  • Industree may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Industree shall repay to the Client any sums paid in respect of the Price. Industree shall not be liable for any loss or damage whatsoever arising from such cancellation.
  • In the event that the Client cancels delivery of Goods, the Client shall be liable for any loss incurred by Industree (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1988

  • The Client and/or the Guarantor/s agree for Industree to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Industree.
  • The Client and/or the Guarantor/s agree that Industree may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
    • to assess an application by Client; and/or
    • to notify other credit providers of a default by the Client; and/or
    • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
    • to assess the credit worthiness of Client and/or Guarantor/s.
  • The Client consents to Industree being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
  • The Client agrees that personal credit information provided may be used and retained by Industree for the following purposes and for other purposes as shall be agreed between the Client and Industree or required by law from time to time:
    • provision of Goods; and/or
    • marketing of Goods by Industree, its agents or distributors in relation to the Goods; and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
    • enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
  • Industree may give information about the Client to a credit reporting agency for the following purposes:
    • to obtain a consumer credit report about the Client; and/or
    • allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

Export Contracts

  • In the event that the Goods are exported, delivery of the Goods may be subject to either FOB Contract or CIF Contract.
  • In the event of a FOB Contract, the following shall apply;
    • the Goods shall be delivered to the Client by delivery on board the agreed-upon mode of transport on the delivery date. Industree shall promptly notify the Client that the Goods have been delivered aboard. Title (subject to clause 7) to, and risk in the Goods shall pass to the Client upon such delivery being effected. Industree shall promptly provide the Client with a clean shipped bill of lading in respect of the Goods.
    • the Client shall reserve the necessary space on board the agreed-upon mode of transport and give Industree due notice of the loading berth and any revised delivery dates. The Client shall bear any additional costs caused due to the failure of the agreed-upon mode of transport being available to load the Goods on the delivery date.
    • In the event of a CIF contract, the following shall apply:
      • the Goods shall be delivered to the Client by delivery on board the agreed-upon mode of transport on or before the delivery date. Industree shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Client. The Goods shall be at the risk of the Client as they are loaded on board. Industree shall promptly tender to the Client a clean shipped bill of lading, the insurance policy and an invoice in respect of the Goods.
      • the Client shall accept the documents tendered by Industree if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of the shipment of the Goods to the port of destination.

General

  • 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.
  • These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
  • Industree shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Industree of these terms and conditions.
  • In the event of any breach of this contract by Industree, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
  • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Industree nor to withhold payment of any invoice because part of that invoice is in dispute.
  • Industree may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
  • The Client agrees that Industree may review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Industree notifies the Client of such change.
  • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other events beyond the reasonable control of either party.
  • The failure by Industree to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Industree’s right to subsequently enforce that provision.