Terms and Conditions


1. INTERPRETATION:

Unless otherwise inconsistent with the context:

  • “Company” means PMG Engineering Group Pty Ltd ABN 95 064 086 193 and each of its subsidiaries, divisions affiliates, associated companies and related entities and any successors and assigns.
  • “Purchaser” means the entity/person purchasing goods and/or services from PMG Engineering Group Pty Ltd.
  • “Goods” includes all goods and services.

2. APPLICATION OF TERMS:

All orders and any other agreement between the Purchaser and the Company regarding the sale of Goods by the Company are deemed to incorporate these terms and conditions. If there is any inconsistency between these terms and conditions and any order submitted by the Purchaser (whether in writing, verbally or by electronic data interchange) or any other arrangement between the parties, these terms prevail unless agreed in writing by the parties.

3. PRICE:

  • (a) The price shall be increased by the amount of any GST and other taxes and duties which may be applicable.
  • (b) The price may be increased or decreased by the amount of any increase or decrease in the cost of any items (including changes in currency exchange rates) affecting the cost of supply, production and/or delivery of the Goods between the date of this agreement (order confirmation) and the date of delivery.
  • (c) An extra charge may be made where additional work results from lack of precision in the Purchaser’s specifications, or the Purchaser alters the specifications after the date of this agreement/order confirmation.
  • (d) The Purchaser is bound to pay the price from the time the order is placed with the Company, with there being no obligation on the Company to inquire as to the authority of any person placing an order on behalf of the Purchaser. No order may be cancelled without the Company’s prior approval, and then only upon such terms as the Company may specify.
  • (e) Alterations to any price list shall be effective from the date specified by the Company at the time of giving notice to the Purchaser.

4. PAYMENT:

  • (a) Payment for all Goods must be made in Australian currency at the time that the Purchaser places an order unless the Company has agreed to provide credit to the Purchaser in respect of such Goods, in which case payment shall be made without deduction and within 30 days after the end of the month in which the Goods are so delivered. Payment must be by EFT, cheque, cash or bank deposit unless otherwise agreed in writing by the Company.
  • (b) Any payments made by credit card may attract additional charges as specified by the company from time to time.
  • (c) The Company may apply any payments received in reduction of the Purchaser’s indebtedness as the Company thinks fit.
  • (d) Interest will be charged on overdue accounts at the prevailing rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 2%.

5. PAYMENT VALIDITY:

The Purchaser acknowledges that the Company continues to supply the Purchaser on condition that, and accepts payments from the Purchaser on the understanding that, all payments by the Purchaser are made validly and in the ordinary course of business, and are received by the Company in the ordinary course of business; unless before making the payment the Purchaser gives notice in writing to the Company of the Purchaser’s inability to pay its debts as and when they become due and payable.

6. CREDIT LIMIT:

The Company may vary or withdraw any credit facility granted to any Purchaser at any time at its sole discretion and without incurring any liability to the Purchaser.

7. RECOVERY COSTS:

The Purchaser shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by the Company in respect of recovery of any debt due by the Purchaser to the Company.

8. RISK:

Unless otherwise agreed in writing all Goods are at the Purchaser’s risk upon delivery to the Purchaser, or its carrier or agent.

9. FORCE MAJEURE:

  • (a) Every effort will be made to carry out an agreement in accordance with the relevant purchase order but the Company may suspend, vary or cancel the provision of Goods owing to an Act of God, war, strikes, lock-outs, fire, flood, drought or any other cause beyond the Company’s reasonable control or an inability to procure materials or articles except at the increased prices due to any of the foregoing causes. The Company will take all reasonable steps to mitigate the effect of such event but will not be required to settle a dispute or otherwise submit to the demands of other parties, in a manner contrary to the Company’s judgment.
  • (b) The Company will not be liable for any loss or damage (including direct or consequential loss or damage) arising from the exercise of its rights under paragraph (a).

10. DEFAULT:

  • (a) If the Purchaser fails to comply with these terms and conditions or any other agreement with the Company or commits an act of insolvency the Company may at its option withhold further deliveries or cancel the agreement without further notice and without prejudice to its rights hereunder.
  • (b) If an event described in paragraph (a) occurs, all amounts payable by the Purchaser to the Company immediately become due and payable notwithstanding that the due date has not arisen.

11. PURCHASER RESTRUCTURE:

The Purchaser shall notify the Company in writing of any change in its ownership, structure and/or management including any change in directors, shareholders and/or management and any change in partnership or trusteeship within seven days of the date of any such change.

12. TITLE:

  • (a) Title to the Goods remains with the Company and does not pass to the Purchaser until the Purchaser pays all amounts owing to the Company in full.
  • (b) At all times before title in the Goods passes to the Purchaser, the Purchaser must:
    • I. Store the Goods so that they are clearly identified as the property of the Company;
    • II. Hold the Goods as bailee for the Company; and
    • III. Keep proper records of account with respect to its purchase, receipt, sale and parting with possession of the Goods.
  • (c) Upon default by the Purchaser, the Company is entitled to retake possession of the Goods and resell them and for that purpose the Purchaser authorises the Company to enter the Purchaser’s premises and remove the Goods. The Company must use reasonable care in entering and removing such Goods, but will not be liable for any damage caused by acting reasonably.
  • (d) If any Goods are resold by the Purchaser before ownership of those Goods has passed to the Purchaser, the proceeds of such sale will be received and held by the Purchaser on trust for the Company in a separate account (to the extent of the Purchaser’s indebtedness to the Company) and the Purchaser (to the extent of the balance if any).
  • (e) The Company may bring an action for recovery of the price of the Goods even where ownership of the Goods may not have passed to the Purchaser.
  • (f) The Customer agrees that the ‘Retention of Title’ is a security interest within the meaning of the Personal Property Securities Act 2009 (Cth) (“PPSA”);

13. PPSA:

  • (a) Upon executing this Agreement, the Purchaser acknowledges and agrees that this Agreement:
    • I. Constitutes a security agreement for the purpose of the PPSA; and
    • II. Creates a security interest in:
      • A. All Goods supplied by the Company to the Purchaser; and
      • B. All Goods that will be supplied in the future by the Company to the Purchaser.
  • (b) The Company may, at its discretion, do any of the following:
    • I. Register or give any notification in connection with any relevant security interest and exercise rights in connection with the security interest; and
    • II. Give notice to the Purchaser requiring it to do anything at its own expense (including amending this Agreement, executing any new document of agreement, obtaining consents and supplying information) which the Company requires for the purposes of the relevant security interest including registering the security interest on the PPSA register.
  • (c) The Purchaser must:
    • I. Comply with any notice received pursuant to paragraph 13(b) within the time stipulated in the notice; and
    • II. Promptly sign any further documents and/or provide any further information (such information to be complete and up-to-date in all respects) which the Company may reasonably require to:
      • A. Register a financing change statement in relation to the Security Interest;
      • B. Register any other document required to be registered by the PPSA; or
      • C. Correct a defect in a statement referred to in paragraph 13(c) (ii) (A) or 13(c) (ii) (B).

14. LIABILITY:

  • (a) The Company accepts no liability for any claim of any kind whatsoever (including without limitation for loss of profits or consequential or indirect loss) by the Purchaser, including without limitation any claim relating to or arising from:
    • I. Any conditions, warranties descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise to the maximum extent allowed by the law; or
    • II. Any representations, warranties, conditions or agreement made by any agent or representative of the Company which are not expressly confirmed by the Company in writing;
      and the Purchaser agrees to indemnify the Company against any such claim.
  • (b) Without limiting the generality of paragraph (a), the company will not be liable for any:
    • I. Defects or damage caused in whole or part by misuse, abuse neglect electrical or other overload, unsuitable lubricant, improper installation, repair, alteration or accident;
    • II. Transportation, installation, removal, labour or other costs;
    • III. Goods not manufactured by it but the Company will endeavour to pass onto the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such Goods under a warranty given by that manufacturer;
    • IV. Technical advice or assistance given or tendered by it to the Purchaser whether or not in connection with the manufacturer, construction or supply of Goods for or to the Purchaser.
  • (c) In any event the Company’s liability shall not exceed the price paid by the Purchaser for the Goods.
  • (d) Nothing in these terms excludes, restricts or modifies any condition, warranty or liability which is implied by the Australian Consumer Law or other applicable laws where to do so is illegal or would render any provision of these terms void.
  • (e) The Company’s liability for failure to comply with a consumer guarantee under the Australian Consumer Law in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited, at the Company’s option to:
    • I. In the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and
    • II. In the case of services, supplying the services again or payment of the costs of having the services supplied again.
  • (f) The Purchaser must inspect the Goods immediately on their arrival and must within 7 days from such arrival, give written notice to the Company of any matter or thing pursuant to which the Purchaser may allege that the Goods are not in accordance with the agreement.

15. DELIVERY:

  • (a) Where delivery is to be made at a place specified by agreement or in the purchase order, the Company shall deliver, or arrange delivery, of the Goods to the place specified.
  • (b) If no place of delivery is specified, delivery shall be made at the Company’s premises and shall take place at the time when the Goods are made available for dispatch at the Company’s premises.
  • (c) If the Company subsequently arranges transportation of the Goods:
    • I. The Company does this as the Purchaser’s agent;
    • II. The Purchaser must pay the Company all the costs of the service; and
    • III. The Purchaser shall indemnify the Company for any liability incurred by the Company in providing this service.
  • (d) The Company may deliver the Goods by instalments, and each instalment shall be treated as a separate agreement.
  • (e) If the Company fails to deliver part of the Goods, this does not entitle the Purchaser to cancel its agreement with the Company.
  • (f) Any time stated for delivery is an estimate only. The Company is not liable for any delay in delivery.
  • (g) If the Purchaser refuses to accept delivery of any Goods the Company may charge the Purchaser for any additional cost incurred as a result, including storage and transportation costs.

16. OWNER OF WORKS:

  • (a) All works produced by or for the Company (including, without limitation, samples design, artwork, cutting dies and moulding dies in whatever form), and any intellectual property in and to such work, remain the exclusive property of the Company unless otherwise agreed in writing , and the Company may charge the Purchaser for maintenance, reworking and storage of such works.
  • (b) Where the Purchaser supplies, or reimburses the Company for the cost of a mould, die, tool, printing plate or any art work or other item used in the manufacturing process:
    • I. The Company shall not be liable for any loss or damage of any such items.
    • II. The Company reserves the right to charge the Purchaser for the reworking of any such items; and
    • III. The Purchaser shall reimburse the Company for all maintenance expenses.

17. INTELLECTUAL PROPERTY:

  • (a) Any technical information, knowledge or processing methods at any time transmitted either orally, electronically or in writing by the Company to the Purchaser and any samples, design and artwork produced by or for the Company shall remain the Company’s property and shall be considered absolutely confidential by the Purchaser and the Purchaser shall not use them for any other purpose nor sell, transfer or divulge them in any manner to anyone without the Company and prior written consent.
  • (b) The Purchaser warrants the use by the Company of any design or instructions supplied by the Purchaser will not infringe the patents, trademark, design or copyright (*intellectual property*) of any other person and the Purchaser agrees to indemnify the Company against any claim relating to or arising from the infringement of any intellectual property of any other person.
  • (c) If at any time a claim is made against the Company or the Company becomes aware that a claim is likely to be made against the Company for infringing any intellectual property or contributing to any such infringement by the Company or any other person as a result of supplying Goods, the Company may immediately terminate or suspend this agreement.

18. WAIVER:

  • (a) If the Company exercises or fails to exercise any right or remedy available to it, this will not prejudice its rights to exercise that or any other right or remedy.
  • (b) Waiver of any term of this agreement will only be effective if specified in writing and signed by an authorised representative of the Company.

19. NO ASSIGNMENT:

The Purchaser must not transfer or assign its rights under this agreement without the written consent of the Company, which consent may be given or withheld at the Company’s discretion.

20. JURISDICTION:

The Purchaser agrees that any agreement made with the Company shall be governed by the laws of Victoria and agrees to submit to the non-exclusive jurisdiction of the Courts of Victoria.

21. CONFIDENTIALITY:

The Purchaser agrees to keep confidential any, and all, information provided by the Company to the Purchaser that is not in the public domain.