TERMS AND CONDITIONS OF SALE

 

Terms and Conditions of Sale

Definitions

In these Terms and Conditions of Sale.

“Customer” means the customer named in the order.

“Goods” means the goods set out in the Order.

“Order” means the written document submitted by the Customer to the Supplier requesting that PPG Industries supply Goods to the Customer on these Terms and Conditions of Sale.

“Price” means the price of the Goods set out in the Supplier’s price list as notified on PPG Industries standard price lists from time to time or as otherwise agreed by the Supplier in writing.

“Special Products” means products manufactured by the Supplier to meet the Customer’s particular specifications as set out in the Order.

“Supplier” means PPG Industries or a related body corporate named as the supplier overleaf.

“PPG Industries” means PPG Industries Australia Pty Ltd ABN 82 055 500 939 of 14 Mc Naughton Road Clayton, Victoria, 3168

Supply of Goods

1.     We, the Supplier, will supply to the Customer the Goods on these Terms and Conditions of Sale.

Contract

2.     The Customer declares that any Goods supplied on credit are to be applied wholly or predominantly for business and/or investment purposes.

3.     If the Customer is the Trustee of a Trust, the Customer by execution of this Agreement agrees that all property of the Trust shall be available for levy in the event of any default by the Customer in addition to any other remedies otherwise available to PPG Industries.

Orders

4.     You must submit an Order for supply of Goods. 

5.     Any quotation we make to you shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only.  We reserve the right to accept or reject in our absolute discretion any Order, which we may receive from you.

Delivery

6.     Any times we quote for delivery of Goods to you are estimates only and we shall not be liable for failure to deliver or delay in delivery for any reason.  You shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery or despatch.

7.     We reserve the right to deliver Goods by instalment, and each instalment shall be deemed to be sold under a separate contract.  You will not be entitled to repudiate the contract if we fail to deliver any instalment.

Payment Obligations

8.     You must pay us the Price for the Goods in accordance with this clause.

a)  If the Price for the Goods is less that $100, you must pay us a delivery/administration fee of $15 in addition to the Price of the Goods.

b)  All payments for Goods must be made to PPG Industries

c)  Unless you have a Credit Account with PPG Industries or we otherwise agree in writing, you must pay the Price for Goods immediately upon delivery of the Goods.  If you hold a Credit Account with PPG Industries, you must pay for Goods within 30 days of the last day of the month of supply of the Goods, whether or not PPG Industries has issued a statement.

d)  The Customer will pay interest on any amount owing to PPG Industries and overdue at the rate prescribed in section 100 of the Civil Procedure Act 2005 from time to time plus 4%.

e)  All payments are to be made in cash, by cheque or otherwise as agreed by us in writing.

f)   If you tender a cheque (bank or otherwise) or other negotiable instrument as payment of our invoice, payment shall be deemed to have been made on the date on which such cheque or other negotiable instrument is negotiated and cleared by PPG Industries bankers.

Risk and Title

9.     You will obtain title to any Goods which we supply when you pay:

a)  the full Price for those Goods; and

b)  any other moneys which you may owe to us.

10.         Although title to the Goods remains with us until time of payment, risk in the Goods passes to you at time of delivery to you, your agent or to a carrier commissioned by the Customer.

11.         Until ownership passes to you:

a)  you shall hold the Goods as bailee and as a fiduciary for us;

b)  unless otherwise notified by us in writing, you are authorised to sell the Goods in the ordinary course of business;

c)  we shall be entitled to enter your premises between 9.00 am and 5.00 pm to inspect the Goods;

d)  you shall store the Goods separately and in such a manner to enable them to be identified and cross referenced to particular invoices;

e)  if you should mix or apply the Goods with or to other products or items such that the Goods are no longer separately identifiable then the Customer and PPG Industries shall be owners in common of the new product;

f)   if you sell the goods you do so as a bailee and a fiduciary and you shall keep the proceeds of any Goods sold in a separate account on trust for PPG Industries and shall not mix those proceeds with any other moneys, including funds of the Customer.

Warranties

12.  The Supplier warrants that the Goods are of merchantable quality and reasonably fit for the purpose for which they are supplied.

13.  Subject to the law, all other warranties or representation, whether statutory or otherwise, and whether express or implied or oral or written as to the state, quality or fitness of the Goods are hereby expressly excluded save and except conditions and warranties implied by the Trade Practices Act 1974 (Cth) and other conditions or warranties which by a relevant statute are expressed to be incapable of exclusion.

14.  Subject to the law, our obligations to you in respect of breach of any term, warranty or condition of this Agreement (whether implied by statute or otherwise) shall, at our option be limited to:

a)  the replacement of the Goods supplied or the supply of equivalent Goods; or

b)  the payment of the cost of replacing the Goods or of acquiring equivalent Goods.

15.  Except as provided by statute, the Supplier shall not be liable to you or any other person for any loss, liability or damage arising out of any advice recommendation, information or services provided by us regarding the Goods or the methods or conditions of application and use of the Goods, including any loss, liability or damage which arises as a result of any act, omission or negligence on your part or the part of your employees or agents.

Claims

16.  If you believe that the Goods, which we deliver, do not accord with those described in your Order, you must give us notice in writing within seven (7) days from the date of delivery.  If you do not give us such notice, you will be deemed to accept the Goods in there supplied condition and must pay the full price for the Goods.

17.  If you have any claim against us in relation to the Goods, you must notify us immediately upon becoming aware of the circumstances giving rise to such a claim, and allow us or our servants or agents full and free access to the Goods in relation to which the claim is made (or the place where the Goods have been applied or used) for the purpose of conducting such tests and examination as we may in our absolute discretion consider necessary to determine whether the claim is justified or not.

Return of Goods

18.  You must not return any Goods to us unless you first contact us and obtain a return authority number.

19.  If we provide you with a return authority number pursuant to subparagraph a) you must:

a)  ensure that the return authority number and the original invoice number of the Goods are clearly displayed on any packaging in which you return the Goods to us; and

b)  pay to us a handling fee equal to 10% of the Price of the Goods unless the goods are defective or have been supplied by our error.

20.  If you return Goods to us without complying with 18 and 19 above, the Goods will be returned to you at your expense.

21.  We will not replace or reimburse the Price of the Goods unless we have inspected the Goods and formed the view that the Goods are defective or were supplied by our error.

Default

22.  If you:

a)  fail to make payment for the Goods as required in these terms;

b)  breach any material term of any contract with the Supplier;

c)  commence to be wound up provisionally or officially or are placed under administration;

d)  have a receiver or manager appointed;

e)  become insolvent (whether actual or deemed insolvency) or bankrupt or commit any act of bankruptcy, including having a mortgagee take possession of any assets or entering into any informal scheme of arrangement with creditors; or

f)   part with possession of the Goods, or any of them, otherwise than by way of sale in the ordinary course of business, or

g)  cease to carry on business;

      the whole of the sum owing by you to us shall immediately become due and payable, your right to deal further in any way with the Goods shall cease immediately and you shall deliver to us all unpaid Goods upon receipt of our written demand.  We may cancel or suspend any order that has been accepted by us but not fulfilled without being liable to you in any way whatsoever.

23.  We shall, without prejudice to any of our other rights, be entitled to enter your premises at any time to do all things necessary in order to take possession of the Goods.

24.  Upon retaking possession of Goods we shall, within a reasonable time, inspect those Goods and credit your account with such sum which we in our absolute discretion consider to be the fair and reasonable value of the Goods after making due allowance for:

a)  the price for which those Goods were sold to the Customer;

b)  the condition of the Goods at the time of repossession; and

c)  the costs incurred by PPG Industries in connection with the repossession, sorting and examination of the Goods.

25.  You shall be liable to pay on demand all costs of whatsoever nature of and associated with the exercise of our rights under this clause, including debt collection costs and commissions and legal costs on a solicitor and own client basis.

26.  The Customer grants to PPG Industries the right to lodge a caveat on any real property owned by the Customer or forming part of any trust property of which the Customer is the trustee in order to secure the payment of any amount owing by the Customer.

Force Majeure

27.  We may partially or totally suspend delivery of Goods to you during any period in which we may be prevented or hindered from delivering by normal means of supply or by normal route through any circumstances outside our reasonable control, including but not limited to strikes, lockouts, raw material shortages, accidents or breakdowns of plant or machine.  If due to short supply of any material, ingredient or other stock, we are unable to supply Goods to you we may at our sole discretion apportion available supply to any of our customers and will not be regarded as in breach of contract for so doing.

Credit Limit

28.  PPG Industries is not required to extend to you any specific amount of credit.

29.  PPG Industries may in its absolute discretion alter or terminate the credit extended.

30.  PPG Industries may notify you of the alteration or termination of credit in writing but you shall not raise any dispute or defence in any court based on any claimed failure by PPG Industries to provide such notice. 

Specials

31.  Any special products which we supply to you, unless otherwise provided by statute ay not be returned for refund or replacement and your must accept variations of plus or minus 10% in the quantities of orders for special products.

Patents

32.  If you furnish any design or instruction to us in relation to the Goods or Special Products, you warrant that the execution of you Order shall not cause us to infringe on any patent, registered design or trade mark, and you indemnify us against any infringement or unauthorised use of patent, trade mark, design or copyright arising out of the use of Goods.

33.  You acknowledge that the sale and purchase of the Goods under this Agreement does not confer on you any licence or rights under any patent, trademark or copyright, which is the property of PPG Industries or any Related Bodies Corporate.

Waiver

34.  Failure by the Supplier to insist upon strict performance of any of the Terms and Conditions of Sale shall not be deemed a waiver thereof or of any rights the Supplier may have and shall not be deemed a waiver of any subsequent breach of any term or condition.  Any condition or part of any condition that would have the effect of rendering all or any part of these terms and conditions void or voidable or otherwise unenforceable shall be served and the remaining parts of the conditions or conditions shall not be affected.

General

35.  The law applicable to this Agreement is the law of New South Wales. The parties submit to the jurisdiction of New South Wales courts.

36.  The Customer acknowledges that proceedings commenced in any Court of appropriate jurisdiction within the Sydney Metropolitan Area have been commenced in an appropriate Court and shall not seek any change of venue.

37.  The Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of PPG Industries

38.  These terms shall prevail over any terms of sale contained in any order made by the Customer.  PPG Industries shall not be deemed to have accepted the Customer’s terms unless those terms are expressly approved and adopted by PPG Industries.

39.  These terms may be amended by PPG Industries at any time.  If PPG Industries changes the terms, a new copy will be provided to the Customer.  Any order placed by the Customer following despatch by PPG Industries of the amended terms is deemed to be an acceptance by the Customer of the new terms.  If the Customer by written notice rejects the amended terms, any credit facilities are immediately withdrawn and all balances due on the Customer’s account are immediately due and payable.