This page shows Acu-Tech’s Terms and Conditions of supply of goods and services.
(“Acu-Tech”) refers to:
ACU-TECH PTY LTD (ABN: 68 626 756 223)
Ultraplast Pty Ltd as trustee for The Morren Family Trust trading as Acu-Tech Piping Systems (ABN: 52 394 633 042)
Ultraplast Pty Ltd as trustee for The BT Family Trust trading as Maxiplast (ABN: 19 667 054 815)
These terms and conditions of supply of goods and services (“Terms”) apply to all contracts between Acu-Tech and the Customer for provision of credit and for the sale, supply and hire of goods, including, but not limited to pipes, pipe fittings, pipe welders and accessories (“Goods”) and to the provision of any related services (“Services”).
- Information Warranty: The Customer hereby warrants that the information provided to Acu-Tech by the Supplier is true accurate and correct and is supplied for the purpose of obtaining credit.
- Consent to Provide and Obtain Information: The Customer consents to the provision, receipt and exchange of information about the Customer to credit reporting agencies. The Customer authorises Acu-Tech to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and to use a credit report containing information about the Customer’s commercial activities or commercial creditworthiness to assess the Customer’s creditworthiness.
- Acceptance of Terms: The submission of a credit application and/or the purchase of Goods by the Customer will constitute acceptance by the Customer of these Terms.
- Quotations: All quotations for prices and availability of Goods provided by Acu-Tech are valid and capable of acceptance by the Customer for a period of 15 days from the date on the quotation unless specified otherwise. Prices are subject to any significant fluctuation in the input prices and exchange rates relating to those Goods as notified from time to time by Acu-Tech.
- Purchase of Goods: Where the Customer issues a purchase order for purchase of Goods, Acu-Tech is not bound in respect of that purchase order until it gives written notice to the Customer confirming acceptance of the purchase order subject to these Terms. Acu-Tech may accept a purchase order for Goods in whole or in part. Acu-Tech is not bound by the date of delivery set out in a purchase order.
- Special Orders: The Customer will be solely responsible for any design defects for Goods made to order for the Customer or Goods manufactured to drawings, specifications or designs provided by the Customer and will indemnify Acu-Tech for any third-party claims or losses in respect of custom-made goods that arise from a design defect in those custom-made Goods.
- Price: The price for purchase of all Goods is the net retail customer price for the Goods as advised to the Customer. At any time prior to delivery, Acu-Tech may adjust the price for Goods by notice to the Customer for changes to the exchange rate or other input costs of the Goods that materially change prior to delivery.
- Hire of Goods: Where a Customer hires Goods from Acu-Tech, Acu-Tech retains all title and ownership of the hired Goods. The Customer will pay hire charges for the longer of the agreed hire period or the period commencing on delivery to the Customer and ending on the date that the Goods are returned to Acu-Tech. The Customer is solely responsible for determining the suitability of the Goods for the required purpose and must use the Goods in a skilful and proper manner, only allow the Goods to be operated by a qualified and trained operator.
- Wet Hire: In the event of Wet Hire of Goods, although the operator of the Goods remains an employee or representative of Acu-Tech, he/she operates the Goods in accordance with the Customer’s instructions and the Customer agrees that Acu-Tech shall not be liable for any actions of the operator and indemnifies Acu-Tech for all claims that arise in relation to the operation of hired Goods during the period of a wet hire to the Customer.
- Customer Responsibility: For hired Goods during the hire period, the Customer must ensure that the hired Goods are fully insured for theft and damage, must clean, fuel, lubricate and maintain the Goods in accordance with the instructions of Acu-Tech, and must return the Good to Acu-Tech at the end of the hire period in good and clean condition with no damage.
- Freight: Freight costs are not included in the prices quoted for Goods and will be charged to the Customer at Acu-Tech’s standard rates, which are available on written request.
- Mistake: Acu-Tech reserves the right to correct mistakes in prices and quantities quoted in any quotation by giving written notice to the Customer at any time prior to the delivery of Goods. The Customer is deemed to have accepted the terms of the correction unless it gives two days written notice declining the corrected quotation.
- Cancellation: Acu-Tech may cancel an order for Goods at any time prior to delivery of Goods by written notice to the Customer without liability to the Customer. The Customer may not cancel a purchase order that has been accepted by Acu-Tech without the consent of Acu-Tech. If Acu-Tech consents to the Customer cancelling a purchase order for Goods (including custom made or non-standard Goods), the Customer must pay to Acu-Tech an amount equal to the costs incurred by Acu-Tech for that order up to the date of cancellation plus 20% of the gross price of the Goods subject to the Order as fair and reasonable compensation for loss of profits and disposal costs of the Goods.
- Payment: All supplies of Goods to Customers are on a cash sale or cash hire basis unless credit terms have been agreed to in writing, which will be on the following terms:
- All accounts are to be settled in full within 30 days from end of month in which Goods/Services are purchased, received, dispatched or hired, whichever is the earliest.
- The Customer may not set off any amount required to be paid to Acu-Tech against any amount that the Customer claims against Acu-Tech.
- Upon a default in payment, then all monies due to Acu-Tech shall immediately become due and payable and shall be paid by the Customer within seven (7) days of the date of demand. Interest will accrue daily from the due date calculated at a rate of 2% per month.
- Any expenses, costs or disbursements incurred by Acu-Tech in recovering any outstanding monies including debt collection agency fees and solicitor’s costs (on a full indemnity basis) shall be paid by the Customer.
- Acu-Tech can at any time require additional security from the Customer as is considered reasonably necessary and can withhold supply of Goods until acceptable security has been granted by the Customer.
- Delivery: All delivery dates are approximate only. Unless otherwise agreed, delivery of Goods will occur upon:
- Where the Customer is responsible for delivery, upon the Goods being handed to the Customer’s carrier at the Acu-Tech factory. A signature of the Customer’s carrier on an Acu-Tech delivery note will be conclusive proof of delivery to the Customer; or
- Where Acu-Tech has agreed to deliver Goods to the Customer, delivery will take place when Acu-Tech delivers the Goods to the nominated site, even if the Client is not present at the site. A delivery note signed by Acu-Tech’s carrier is conclusive proof of delivery to the Customer. The Customer will be responsible to provide any equipment needed to effect delivery of Goods and will be responsible for all costs of Acu-Tech that arise where delivery is prevented or delayed because of lack of equipment to unload Goods.
- Delay: The Customer will be liable for any loss suffered by Acu-Tech because of any delay of delivery of Goods caused or contributed to by the Customer including reasonable storage fees and any costs associated with re-delivery.
- Certification: If the Customer requires that the Goods be certified, then the issue of any certification certificate will be entirely at the discretion of Acu-Tech and, if issued, will incur a fee in an amount to be advised by Acu-Tech to the Customer at the time that the request for certification is received.
- Title and Risk: Risk in relation to Goods passes to the Customer on delivery. Title to Goods does not pass to the Customer until full payment for the Goods has cleared in the account of Acu-Tech. Acu-Tech retains title to those Goods and to any proceeds from disposal of those Goods
- Claims: Any claim for non-delivery, shortage in supply or damage occurring during the course of delivery or any claim for rejects by a Customer must be in writing and given to the manager of Acu-Tech within 24 hours of delivery.
- Return of Goods: The Customer may not return any custom-made or specially produced or ordered Goods. All returns of unused Goods are subject to approval by Acu-Tech at its absolute discretion upon receiving a completed Request for Credit Return Form from the Customer. All credits for Goods that have been approved for return will be less a 25% restocking fee and less any freight charges incurred by Acu-Tech.
- Repossession: Upon default in payment by the Customer, Acu-Tech may repossess unpaid Goods. All costs of such repossession of Goods by Acu-Tech will be payable by the Customer. Such rights shall be without prejudice to Acu-Tech’s right to claim damages from the Customer for breach of contract. The Customer irrevocably authorises Acu-Tech and its servants and agents to enter upon the Customer’s premises without notice at any time, for the purposes of examination or recovery of Goods.
- Reliance on Advice: The Customer acknowledges that it relies solely on its own skill and judgment and that it has not relied on any representation by Acu-Tech in relation to the fitness for purpose or the suitability of the Goods or Services. Except where Acu-Tech has acted fraudulently or has been intentionally misleading, the Customer releases Acu-Tech from any claim and indemnifies Acu-Tech for liability in relation to any advice, recommendation or assistance provided to the Customer by Acu-Tech in relation to the Goods.
- Design, Installation, Operation and Maintenance of Goods: The Customer is solely responsible for adequacy of the design of Goods and of layouts and systems using the Goods. The Customer must obtain all necessary governmental permits and approvals for the installation and use of the Goods. The Customer must ensure that all design and installation of the Goods is carried out by suitably trained and qualified tradespersons under the supervision of, and in accordance with the instructions of, a suitably qualified engineer. The Customer must at all times use the Goods and undertake system design, installation and operation and maintenance of the Goods in accordance with regulatory requirements, relevant international and national standards, and industry best practice. Acu-Tech will not be liable, and the Customer releases Acu-Tech form all claims, in relation to the Goods where the Customer has not complied with the requirements of this clause 23.
- Insured Claims: To the extent that the Customer makes a claim in respect of Goods or Services that an Acu-Tech insurance policy responds to (Insured Risk), the liability of Acu-Tech to the Customer will be limited to the amount that is recovered under that insurance policy. Acu-Tech will take all such reasonable action as is required under an insurance policy to recover proceeds under that policy for a Customer claim provided that Acu-Tech is never required to take legal action against an insurer except in circumstances where the Customer pays for the costs of such action and gives Acu-Tech a full indemnity for all costs and liabilities arising out of such action and such security as Acu-Tech may reasonably require.
- Uninsured Claims: For claims that are not subject to clause 24, Acu-Tech’s liability to the Customer in relation to Goods and Services will never exceed the price of the Goods. Acu-Tech will not be liable for any consequential loss or damages, including (but not limited to) loss of profit, business revenue, goodwill, anticipated savings or damage to property. The Customer indemnifies Acu-Tech against any loss or expense arising from a Customer breach of these terms. The Customer indemnifies Acu-Tech against any claims made by a third party in respect of negligence, personal injury or death arising out of the supply of Goods to the Customer by Acu-Tech.
- Warranty: Acu-Tech’s liability for a product liability claim that is not otherwise covered by clause 24 is limited to either (at its option) repair of Goods, or the resupply of the Goods upon the Customer returning (at its cost) the defective Goods, or the refund of the price for the Goods to the Customer.
- Force Majeure: Acu-Tech is not liable for any loss caused to the Customer arising from an event or occurrence that is beyond the control of Acu-Tech including as a result of (but not limited to) strikes, lockouts, fires, hurricanes, extreme weather, riots, war, embargoes, civil commotions and Acts of God.
- Severance: These Terms do not exclude any provisions required by Law to be included and any inconsistent provisions shall be severed from these Terms without affecting the enforceability of the remaining provisions. If any of these terms or conditions is or becomes for any reason wholly or partly invalid that term or condition shall to the extent of the invalidity be severed without prejudice to the continuing force and validity of the remaining conditions.
- Trust: In the case of a Customer that is a trust, the trustee of the Customer and its directors enter this Agreement in their personal capacity as well as in their capacity as Trustee. The Trustee warrants that the trust is lawfully operating and that the assets of the trust shall be available to meet payment of the
- Change of Ownership: The Customer shall no later than 14 days prior to any proposed change of ownership, shareholders of the Customer or a Parent Company, alteration, addition to the shareholding or directorship, notify Acu-Tech of the proposed change. Acu-Tech may, in its absolute discretion, cancel any outstanding order with the Customer or require such deposit or other security as Acu-Tech may reasonably require from the Customer upon change of ownership.
- Charge: The Customer grants Acu-Tech the following security interests as collateral for its performance of its repayment obligations under the credit facility granted under this Agreement:
- The Customer hereby charges all presently owned and future acquired real property of the Customer against performance of its obligations under these Terms authorises Acu-Tech to register an absolute caveat over any land the subject of this charge;
- The Customer hereby charges all present and after-acquired personal (movable) property of the business as security which includes all proceeds of the sale or divestment of any present or after-acquired Goods or personal property and the security interest granted pursuant to this clause extends to all rights in relation to the Customer’s debtors; and
- The Customer will do all such things and provide all such documents as reasonably directed by Acu-Tech to enable Acu-Tech to obtain the full benefit of the securities granted in these provisions.
- PPSA: The Customer acknowledges that Acu-Tech has a security interest in all Goods under the Personal Properties Securities Act 2009 (Cth) (PPSA) that Acu-Tech may register on the PPS Register. The Customer waives all rights to receive notifications and verification statements under the PPSA. The Customer will do anything reasonably required by Acu-Tech to maintain, perfect or enforce a security interest and to ensure that Acu-Tech’s interests are not adversely affected by the PPSA. The Customer will not grant any competing security interests or do anything that would adversely affect Acu-Tech’s security interest under the PPSA.
- Assignment: The Customer may not assign its rights or obligations in respect of an order under these Terms without the consent of Acu-Tech.
- Entire Agreement and Priority: The written documents between the Parties comprise the entire agreement between the parties relating to the provision of Goods and Services by Acu-Tech and all negotiations, understandings, representations, warranties, memoranda or commitments are excluded from having binding effect and are superseded by the written documents between the parties. Where the agreement between Acu-Tech and the Customer comprises more than one document and there is any conflict between the provisions of documents, the documents shall be given the following priority of interpretation (from highest priority to lowest):
- Quotation given by Acu-Tech;
- These Terms;
- Order Confirmation;
- Purchase Order; and
- Any other document that forms part of the Agreement between the Parties.
- Jurisdiction: The laws of the State of Western Australia apply to this Agreement and all contracts between Acu-Tech and the Customer, and unless varied by mutual consent all contracts shall be subject to the jurisdiction of any of the Courts of Western Australia.