These terms and conditions (Conditions) shall apply to and form part of any contract created for the supply of goods, products and materials and provision of related services (Goods) by Alam & Kalam Pty Ltd ABN 33 616 893 586 (Alam & Kalam) and its agents, servants and employees, to a purchaser, who shall include the person, persons, company or business entity to whom Alam & Kalam sells or supplies, or proposes to sell or supply, the said Goods (Purchaser).
2 – General:
2.1 All quotations, tenders, offers, orders and contracts are made or accepted and all Goods are supplied subject to these Conditions and any special terms and conditions which are imposed or agreed to by Alam & Kalam from time to time, unless varied in writing by Alam & Kalam; this is notwithstanding anything that may be stated to the contrary on Purchasers’ inquiries or orders that purport to contain the Purchaser’s terms and conditions governing the transaction. For the avoidance of any doubt, unless otherwise expressly agreed to in writing by Alam & Kalam, previous dealings between Alam & Kalam and any Purchaser or the attempted imposition of additional or alternative terms and conditions by a Purchaser shall not vary or replace these Conditions or be deemed in any circumstances whatsoever to do so.
2.2 – Alam & Kalam may withdraw, revoke or vary a written quotation at any time.
2.3 – Alam & Kalam reserves the right to accept or decline, in whole or in part, any order for Goods placed by a Purchaser.
2.4 – The contract to supply Goods to the Purchaser starts on the date Alam & Kalam agrees to supply the Goods to the Purchaser. This may not be the date the order is received by Alam & Kalam.
2.5 – Where in the period between acceptance of a quote and delivery of the relevant Goods, Alam & Kalam incurs an increase in the cost of producing and/or delivering the Goods, Alam & Kalam reserves the right to increase the quoted price of those Goods any time prior to delivery (a ‘price escalation’). The Purchaser shall accept any such price escalation.
2.6 – If a delivery date is specified in any quotations, tenders, offers, orders or contracts, this date is an estimate only and Alam & Kalam is not liable for any delay in delivery.
2.7 – If Alam & Kalam is unable to supply the Purchaser’s total order, these Conditions shall continue to apply to the Goods supplied.
2.8 – These Conditions prevail over any terms and conditions of trade of the Purchaser whether or not any inconsistency arises.
2.9 – Each of the provisions of any contract formed is severable from the others in that if at any time one or more of such provisions is or becomes void, invalid, illegal or unenforceable for any reason the remaining provisions of said contract will not be affected.
3 – Quotations:
Any quotation or statement of price provided is an invitation to treat only and is not an obligation to sell or offer to supply. Any quotation given on price is an estimate only.
4 – Price:
4.1 – The price for the supply of Goods may be subject to any price escalation made before or after the acceptance of quotation, order or contract and also during the currency of any order or contract, either made orally or in writing, unless otherwise stated in writing. Unless otherwise indicated, all prices for Goods are exclusive of all applicable taxes and charges.
4.2 – The price excludes GST unless specified. The Purchaser shall be liable for all excise, sales, GST or any other tax, charge or government impost (domestic or foreign) upon the Goods or any part of the Goods, or upon the manufacture, use, sale or delivery of the Goods, in addition to the purchase price. Where Goods are subject to GST, the Purchaser must pay GST at the same time as payment for the Goods is made.
4.3 – Unless otherwise agreed, prices do not include the cost of delivery of Goods, including but not limited to costs incurred by Alam & Kalam arising out of late notification by the Purchaser of a change to agreed delivery schedule and storage charges where Goods are not collected immediately upon being made available.
4.4 – These Conditions may be altered by Alam & Kalam on 30 days’ notice.
5 – Offer and Acceptance: A quotation by Alam & Kalam is not an offer, and an order given pursuant to any quotation shall not bind Alam & Kalam until accepted by it in writing or by the commencement of the supply of Goods. Unless otherwise agreed in writing these Conditions shall be deemed to be incorporated in any contract between Alam & Kalam and the Purchaser. Any terms and conditions contained in any order offer acceptance or other document of the Purchaser which are inconsistent with these Conditions are expressly excluded.
6 – Performance of Contract: Any date quoted by Alam & Kalam for completion is an estimate only and unless a written guarantee shall have been given by Alam & Kalam, it shall not be liable to the Purchaser for any loss or damage (even if arising out of the negligence of Alam & Kalam) caused by the failure to complete the supply of Goods on or before the quoted date.
7 – Purchaser’s Property: Any quotations relating to the fabrication or machining or welding of property supplied by a Purchaser are based on those items being supplied to Alam & Kalam in a dimensionally correct state and free from any defects. The Purchaser further warrants that any such items of property supplied by the Purchaser are capable of being fabricated, machined or welded according to acceptable general practice. Any quotations relating to the provision of services to items supplied by a Purchaser are based on those items being supplied to Alam & Kalam in a correctly manufactured condition and with acceptable allowances. Where Goods of the Purchaser in the care and control of Alam & Kalam are damaged or destroyed, Alam & Kalam will only be liable to the extent of any indemnity provided by Alam & Kalam’s insurance (if any) even if the damage or destruction arises as a result of the negligent, reckless or willful act or omission of Alam & Kalam.
8 – Retention of Title to Goods and PPSA:
8.1 – Legal and equitable title to Goods sold by Alam & Kalam to the Purchaser will not pass from Alam & Kalam to the Purchaser until the later of:
(a) unconditional payment in full to Alam & Kalam for those Goods; and
(b) unconditional payment in full of any and all other amounts owing or unpaid by the Purchaser to Alam & Kalam on any 2 account, including but not limited to in respect of Goods previously or subsequently supplied to the Purchaser.
8.2 – Payment in full will not be regarded as having been received by Alam & Kalam unless and until payment is made in cleared funds.
8.3 – Until such time as title to Goods passes to the Purchaser under clause 8.1: (a) the Purchaser will hold the Goods as a fiduciary and as bailee for Alam & Kalam and will be responsible for any loss, damage or conversion of the Goods; (b) the Purchaser must store the Goods physically separate from the other goods of the Purchaser and in such a manner as to identify the Goods and show clearly that they are owned by and remain Alam & Kalam’s property; (c) Alam & Kalam may enter any premises owned or occupied by the Purchaser or its agents to take possession of any Goods to which title has not passed and where payment on any account is overdue, or inspect the Goods or inspect the Purchaser’s books and records regarding the Goods at any time (at its discretion); (d) subject to the Purchaser’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Purchaser under clause 8.1 not having ceased, and despite the above, the Purchaser may only use the Goods in the ordinary course of the Purchaser’s business, or sell the Goods in the ordinary course of the Purchaser’s business, provided that where the Purchaser sells Goods, it will do so as principal and the Purchaser will have no power to commit Alam & Kalam to any contract or otherwise or to any liability, but as between the Purchaser and Alam & Kalam, the Purchaser will sell as fiduciary agent and hold all proceeds on trust for Alam & Kalam. When the Purchaser is not paid by that third party, the Purchaser must at the request of Alam & Kalam assign its claim against that third party to Alam & Kalam. The Purchaser must pay the stamp duty on any such assignment. For the purpose of perfecting any such assignment the Purchaser irrevocably appoints Alam & Kalam as its agent and holds the book debt arising from such sale and, upon payment of such debt, the proceeds of sale (but only to the extent of the monies and any outstanding interest owing to Alam & Kalam) upon trust for Alam & Kalam; and (e) the Purchaser must ensure that the Goods are not and will not be subject to any encumbrance or other security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without Alam & Kalam’s prior written consent.
Without limiting Alam & Kalam’s rights, if the Purchaser becomes aware of a third party’s interest in or relating to an encumbrance or other security interest, including a lien, in respect of the Goods, the Purchaser must notify Alam & Kalam immediately in writing and provide Alam & Kalam with all relevant details relating to the encumbrance or other security interest, including the third party’s full name and contact details, the nature of the encumbrance or other security interest and the Goods subject to the encumbrance or other security interest.
8.4 – Despite this clause 8, Alam & Kalam is entitled to maintain an action against the Purchaser for payment of the purchase price of Goods.
8.5 – The Purchaser agrees that clause 8.1 creates a security interest (including, where applicable, a purchase money security interest, as defined in the PPSA) in Goods (and their proceeds, as defined in section 31 of the PPSA) supplied by Alam & Kalam to the Purchaser from time to time.
8.6 – The Purchaser agrees to do all things necessary and execute all documents required by Alam & Kalam to register each security interest in the Goods, and ensure that Alam & Kalam acquires a perfected security interest in the Goods, under the PPSA.
8.7 – Until title to Goods passes to the Purchaser under clause 8.1, the Purchaser waives its rights under sections 95, 118, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the PPSA, to the extent that is permitted by law.
Alam & Kalam may also contract out of any additional provision of the PPSA as determined by Alam & Kalam from time to time, provided that is also permitted under the PPSA.
8.8 – Where Alam & Kalam has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
8.9 – The Purchaser agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Purchaser to Alam & Kalam as is equivalent to Alam & Kalam’s estimation of the net realisable value of the Goods, or their cost price (whichever is the lower) as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Purchaser has in the Goods.
8.10 – Until title to Goods passes to the Purchaser under clause 8.1, the Purchaser must not give to Alam & Kalam a written demand, or allow any other person to give to Alam & Kalam a written demand, requiring Alam & Kalam to register a financing change statement under the PPSA in respect of or affecting any Goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of or covering the Goods.
8.11 – The Purchaser will be responsible for payment of any fees (and any other costs) that Alam & Kalam incurs in relation to investigating, perfecting or registering Alam & Kalam’s security interest in the Goods, and those fees and costs may be added as a charge on invoices issued by Alam & Kalam to the Purchaser.
8.12 – The Purchaser may not assign or factor the Purchaser’s right and interest in any debt owed by a customer of the Purchaser to the Purchaser on account of the proceeds of sale of any of Alam & Kalam’s Goods by the Purchaser on credit or deferred payment terms, without Alam & Kalam’s prior written consent.
8.13 – Subject to section 275(7) of the PPSA and any provision of any other contract between Alam & Kalam and the Purchaser permitting Alam & Kalam to disclose information, Alam & Kalam and the Purchaser agree that neither of them will disclose, or authorise the disclosure of, information of the kind described in section 275(1) of the PPSA in relation to these Conditions, any contract or any transaction contemplated by or effected under these Conditions or any contract.
8.14 – The Purchaser must notify Alam & Kalam in writing of any change in the Purchaser’s ownership or in the ownership of the Purchaser’s business, or in the directors or address of the Purchaser. Notwithstanding any change in the Purchaser’s ownership/trading structure or any notice by the Purchaser to Alam & Kalam of such change, the Purchaser will remain personally liable for the payment for any Goods and/or Services supplied to, or ordered by, the Purchaser from Alam & Kalam until the Purchaser has received written confirmation from Alam & Kalam that the Purchaser’s account has been closed and full payment has been received by Alam & Kalam.
9 – Delivery and Acceptance:
9.1 – The Goods shall be delivered to the Purchaser’s address herein, or as otherwise notified in writing to Alam & Kalam at the 3 time of the order.
9.2 – The Purchaser must inspect the Goods immediately upon delivery and must within 2 Business Days of delivery give written notice to Alam & Kalam 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 shall be deemed to be in all respects in accordance with the contract. The Purchaser shall be bound to accept the same.
9.3 – The Purchaser must not accept the delivery of Goods if at the time it is insolvent or likely to become insolvent.
10 – Warranty and Alam & Kalam’s Liability on Breach:
No conditions, descriptions, representations, statements or warranties on the part of Alam & Kalam given or implied or deduced to be given or to be implied from anything said or written in the negotiations between the parties and their representatives, and any and all statutory or other warranties, conditions, descriptions or representations, expressed or implied by law as to the state, quality,
condition or fitness of the Goods are hereby expressly excluded, and are not binding on Alam & Kalam unless set out in these Conditions or unless they cannot by law be excluded from the contract between Alam & Kalam and the Purchaser in which case they are declared to apply without restriction, limit or modification notwithstanding anything inconsistent with these Conditions.
The only conditions and warranties that are binding on Alam & Kalam in respect of the state, quality, condition or fitness of the Goods supplied by it to the Purchaser, are those imposed and required to be binding by statute. For the avoidance of any doubt, Alam & Kalam provides no warranties, and shall not be liable, for the Goods where the Goods incorporate material that has been supplied by the Purchaser.
To the extent permitted by statute, Alam & Kalam’s liability, if any, for breach of a warranty referred to in this clause (whether express or implied by law) shall be limited to and completely discharged by (at the sole
discretion of Alam & Kalam):
10.1 – the replacement of the Goods or the supply of equivalent Goods (where the Goods supplied are defective); or
10.2 – the repair of the Goods (where the Goods are defective); or
10.3 – the payment of the costs of replacing the Goods or of acquiring equivalent Goods (where the Goods are defective); or
10.4 – the payment of the costs of having the Goods repaired where the Goods are defective.
The Purchaser acknowledges that it does not rely, and it is unreasonable for the Purchaser to rely, on the skill or judgment of Alam & Kalam as to whether the Goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of Goods by description or sample. The Purchaser shall take the Goods at its own risk as to their state, quality, condition or sufficiency and fitness for any purpose.
11 – Exclusion of Damages and Consequential Loss: Alam & Kalam shall in no circumstances be liable for or have any liability (including liability in negligence) for any form of damages (including but not limited to incidental, special, consequential or general damages or loss) in connection with or arising out of, or loss suffered or incurred as a result of or caused by (whether directly or indirectly), the supply, performance or use of any Goods supplied or performed (as the case may be) by Alam & Kalam to or for the Purchaser or any person, or any failure to supply Goods or to perform any services in excess of the limitation provided in
12 – Indemnity: The Purchaser indemnifies Alam & Kalam, regardless of any negligence on the part of Alam & Kalam, against:
12.1 – All losses incurred by Alam & Kalam;
12.2 – All liabilities incurred by Alam & Kalam; and
12.3 – All costs actually payable by Alam & Kalam to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by Alam & Kalam in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal);arising directly or indirectly as a result of or in connection with the supply of Goods by Alam & Kalam to the Purchaser.
The Purchaser must pay to Alam & Kalam all liabilities, costs and other expenses referred to in this clause, whether or not Alam & Kalam has paid or satisfied them
13 – Force Majeure:
If Alam & Kalam is prevented from delivering Goods for any cause beyond its control it shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser by notice in writing to the Purchaser and the Purchaser shall not have any claim whether in contract, tort or otherwise, for damages against Alam & Kalam in respect of any such cancellation and the Purchaser should be liable to pay the reasonable charges of Alam & Kalam up to the time of such cancellation. If either party is prevented from or delayed in complying with any obligation (other than to pay money or any obligation already covered in this clause) by an event beyond its control, performance by it of that obligation is suspended during the time, but only to the extent that compliance is prevented or delayed.
14 – Cancellation by Alam & Kalam:
In addition to any rights of Alam & Kalam which are implied by the Sale of Goods Act (which
shall apply to these Conditions) Alam & Kalam shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser where the Purchaser has not complied with the applicable terms of payment
15 – Payment of Price and Failure to Pay:
15.1 – Payment shall be cash on delivery except where otherwise agreed by Alam & Kalam.
15.2 – If the Purchaser fails to make payment when due pursuant to these Standard Terms and Conditions of Sale, the amount unpaid will incur compound interest at the rate of 2 per cent above the corporate overdraft index rates set by the Commonwealth Bank of Australia at the time of the breach, accruing daily, in respect of each day that the amount outstanding remains unpaid (Interest) until the date payment is received. Interest calculated daily will accrue at such a rate after, as well as before, any judgment.
15.3 – If the Purchaser fails to pay any amount that is due and payable pursuant to these Standard Terms and Conditions of Sale, Alam & Kalam will be entitled to appoint a debt collector or debt collection agency/ies and/or take legal action seeking recovery of all monies as well as Interest on the unpaid amount (both before and after judgment, where applicable) and the Purchaser agrees that it will have to pay Alam & Kalam any and all costs it incurs associated with enforcing its rights under these Standard Terms and Conditions of Sale, including – but without limitation – recovery of 4 the unpaid amount, legal costs, administration costs and all other costs relating to debt collection including the cost of appointing, and fees charged by, debt collectors or debt collection agencies.
15.4 – Notwithstanding any other remedies available to Alam & Kalam (either pursuant to these Standard Terms and Conditions of Sale or at law) to recover any amount due and payable to it, if the Purchaser defaults in payment of the price (or any part thereof) for the supply of Goods, if in Alam & Kalam’s opinion the Purchaser will be unable to meet its payment obligations to Alam & Kalam as they fall due, if a receiver, manager, administrator or controller becomes entitled to take possession of any of the Purchaser’s assets, any proceedings are instituted for the Purchaser’s winding up, the Purchaser enters into a deed of company arrangement, the Purchaser becomes an externally-administered body corporate, the Purchaser becomes insolvent, a change occurs in the ownership of the Purchaser or the ownership of the
Purchaser’s business or in its directors, or otherwise upon any default or breach of these Standard Terms and Conditions of Sale, then without prejudice to the other rights of Alam & Kalam: a) all amounts owing to Alam & Kalam will, whether or not due for payment, become immediately payable by the Purchaser, b) the Purchaser’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Purchaser will cease, and c) Alam & Kalam may immediately cease or suspend the supply of further Goods and / or terminate or suspend any orders accepted by Alam & Kalam that have not been performed, at its complete discretion and without incurring any liability to the Purchaser, without mediating, without giving the Purchaser notice and without affecting any other rights or remedies available to Alam & Kalam. Alam & Kalam may also enter onto any premises where the Goods in respect of which title has not passed to the Purchaser are stored, and take immediate possession of and re-sell any Goods for which payment remains outstanding. Alam & Kalam is not liable to the Purchaser if it takes any such action. The Purchaser indemnifies Alam & Kalam in respect of any claims or actions against, and costs, expenses and other liabilities incurred by Alam & Kalam in relation to: d) The removal, repossession, transportation, storage and sale of Goods pursuant to these Conditions, including without limitation any claims brought by third parties; and e) Any of the matters set in this clause 16.
15.5 – Alam & Kalam reserves the right to set off against, or deduct from, any monies it at any time owes to the Purchaser on any account, any monies the Purchaser owes to it, but shall not be obliged to do so.
16 – Risk:
Alam & Kalam’s responsibility and liability for risk, loss or damage with respect to any Goods supplied passes to the Purchaser from the time that the Goods are allocated to a Purchaser’s order by Alam & Kalam or the time a contract is created, whichever occurs first.
17 – Transport Costs:
Transport costs including delivery fees are at the Purchaser’s expense unless agreed otherwise in writing.
18 – Use of Goods, Purchaser Specifications and Technical Advice and Assistance
a. Where Goods are supplied by it, it is not Alam & Kalam’s practice to recommend or warrant that the Goods are suitable for a particular purpose or use and the Purchaser acknowledges that:
– i. it does not rely upon nor is it reasonable for it to rely upon any opinion of Alam & Kalam in this regard;
– ii. in choosing the Goods the Purchaser has relied entirely on its own knowledge and expertise.
b. Alam & Kalam shall not be liable for any error, omission or inaccuracy in any drawings or specifications provided or
approved by the Purchaser.
c. Alam & Kalam shall not be liable in any circumstances for any technical advice or assistance given or rendered by it to the Purchaser in connection with the supply of Goods save as provided in clause 10 of these Conditions.
19 – Law of Queensland:
The contract between Alam & Kalam and the Purchaser shall be construed and take effect in accordance
with and be governed by the laws in force in the State of Queensland and each party submits to the jurisdiction of the courts of the State in relation to any dispute arising out of any contract.
20 – Assignment:
20.1 – The Purchaser may not assign any rights under any contract entered into with Alam & Kalam, without Alam & Kalam’s consent.
20.2 – Alam & Kalam may assign or otherwise deal with its rights under any contract entered into with the Purchaser in any manner it considers appropriate. The Purchaser agrees that Alam & Kalam may disclose any information or documents that it considers desirable to enable it to exercise this right. The Purchaser also agrees that Alam & Kalam may disclose information or documents to any person to who it assigns its rights under any contract.
21 – Definitions:
21.1 – “GST” means Goods and Services Tax or other tax that substitutes or replaces the Goods and Services Tax from time to time;
21.2 – “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time.