Terms & Conditions
Terms and Conditions
1. GENERAL
These terms and conditions apply to the supply of Goods by Confoil to the Purchaser. Unless expressly agreed to by Confoil in writing, these terms and conditions shall apply to the exclusion of any other agreement including any terms and conditions of the Purchaser (whether on the Purchaser’s order form or otherwise). By ordering any Goods, the Purchaser agrees to be bound by these terms and conditions and any other specific terms or limitations applying to the Goods ordered.
2. DEFINITIONS
Confoil means Confoil Pty Ltd ACN 005 176 429 and includes its related entities forming part of the Confoil group of companies.
Purchaser means the person placing an order to purchase Goods from Confoil.
Goods means goods supplied by Confoil the subject of the order.
GST means Goods and Services Tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the happening of any of the following events in relation to the Purchaser:
(a) being a company, the appointment of an administrator or controller (within the meaning of section 9 of the Corporations Act 2001 (Cth)) or receiver or provisional liquidator or liquidator over the relevant company, the directors of the relevant company resolving that the company be wound up, the making of an order of a Court that the company be wound up or the company being deregistered for any reason or anything analogous to or having a similar effect under the law of any relevant jurisdiction; or
(b) being an individual, the appointment of a trustee or controlling trustee (within the meaning of the Bankruptcy Act 1966 (Cth)) over the affairs of the person, or the person being an insolvent under administration (as defined under the Corporations Act 2001 (Cth)).
3. INTERPRETATION
Any references in these terms and conditions to: the singular includes a reference to the plural and vice versa; and legislation includes a reference to that legislation as amended or replaced from time to time and to any rulings or regulations issued in relation to that legislation.
4. PRICES
(a) The prices for the Goods are the prices contained in Confoil’s price list in effect or as published on Confoil’s website at the time the Goods are ordered.
(b) Confoil reserves the right to alter its prices, including its price list is at any time without notice. Should Confoil alter its prices, for any reason including but not limited to pricing errors, after receiving an order from the Purchaser, Confoil shall contact the Purchaser prior to processing and fulfilling the order to update the price and/or permit the Purchaser to cancel the order.
(c) Prices listed are in Australian Dollars ($AUD) unless otherwise stated.
(d) All quotations provided to the Purchaser by Confoil are open for acceptance for the period specific in the quotation, or if no period is specified, 14 days after which time the quotation will lapse.
5. ORDERS
(a) By placing an order, the Purchaser warrants that:
(1) all details provided to Confoil when placing the order are current, correct and complete; and
(2) the Purchaser is an authorised user of the payment method used to place or pay for an order.
(b) Confoil reserves the right to reject any order for Goods for any reason, including but not limited to:
(1) if the Goods are not available;
(2) if there is an error in the description or price of the requested Goods; or
(3) if there is an error in your order.
(c) If Confoil rejects an order, Confoil will notify the Purchaser using the contact information provided with the order either at the time of placing the order or within a reasonable time thereafter and where Confoil considers it appropriate to do so, will give the Purchaser the option of reconfirming the order, changing the order or cancelling the order.
(d) If Confoil is unable to contact the Purchaser, Confoil will treat the order as cancelled. If an order is cancelled and has already paid for, Confoil will refund the purchase price to the Purchaser’s payment method.
6. VARIATIONS
(a) The Purchaser agrees that any alterations to orders, including to alter the size, dimensions or physical properties of Goods and/or tooling is subject to the discretion of Confoil.
(b) Except where permitted by these terms and conditions or where agreed to by Confoil in its sole discretion, the Purchaser agrees that it may not cancel an order once it has been accepted by Confoil.
7. GOODS
(a) The Purchaser acknowledges that the availability of Goods are subject to change without notice. Confoil does not warrant that any Goods, whether appearing on Confoil’s website, its price list or otherwise, will be available for purchase. The Purchaser should confirm directly with Confoil whether a Good is available for purchase.
(b) The Purchaser acknowledges that some Goods are subject to manufacturing lead times that are outside the control of Confoil. While Confoil uses reasonable endeavours when providing estimate of lead times, Confoil does not warrant the accuracy of such lead times and disclaims all liability in the event of any Goods not being supplied within such timeframes.
(c) Confoil reserves the right to withdraw any Good from sale without notice, for any reason. However for various reasons, that Good might still appear on Confoil’s website or remain on Confoil’s price list for a period of time after that withdrawal.
(d) The Purchaser acknowledges and agrees that:
(1) variations to Goods may occur from time to time for various reasons, including changes in manufacturing material or specification;
(2) images of Goods, including colours are intended to be a guide only and the actual Good and colour may vary from the representation provided;
(3) descriptions of Goods are provided as summaries and general information only, the Purchaser is responsible for reviewing and confirming the specifications of Goods are suitable for their purposes.
(e) Confoil disclaims all liability for any loss suffered by the Purchaser as a result of reliance on the accuracy, adequacy, completeness or currency of any images and descriptions of the Goods.
8. DELIVERY
8.1 Unless otherwise agreed in writing by Confoil, all Goods shall be delivered to the location specified by the Purchaser when placing the order.
8.2 The Purchaser must ensure that Confoil, including any contractor engaged to deliver the Goods, is provided with reasonable assistance to access any location specified or agreed for delivery of the Goods.
8.3 Confoil reserves the right to deliver the Goods in parts. If the Goods are partly delivered, the Purchaser must accept the part delivery and pay the proportion of the price represented by the Goods delivered.
8.4 The Purchaser acknowledges that any delivery dates and times that are provided by Confoil are estimates only. While Confoil uses reasonable endeavours to meet any estimated delivery times provided, to the maximum extent permitted by law, Confoil:
(a) does not warrant the Goods will be delivered on or by a particular date and/or time; and
(b) is not liable to the Purchaser or any other persons for any delay in delivery or failure to deliver the Goods by a particular date and/or time.
8.5 The delivery fees, if any, are those notified to the Purchaser at the time of placing an order. If the Purchaser requires alternative delivery arrangements (in addition to deferment of delivery as contemplated under clause 8.6). any such alternative arrangements are subject to
(a) the written agreement of Confoil; and
(b) the payment of additional delivery fees specified by Confoil.
8.6 Should the Purchaser wish to defer delivery of any Goods, the Purchaser agrees that any such deferment is subject to:
(a) the written agreement of Confoil; and
(b) the payment of any warehousing fee and other ancillary fees specified by Confoil, to apply from the date the deferment is agreed by Confoil until the date of actual delivery of the Goods.
9. GST
(a) The prices for the Goods are exclusive of GST (unless otherwise stated).
(b) To the extent that any supply made under or in connection with these terms and conditions (including the supply of the Goods) is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.
(c) Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with these terms and conditions.
(d) If a payment to a party under these terms and conditions is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST pursuant to clause 9(b).
10. PAYMENT
(a) The terms of payment are net cash, thirty (30) days from the end of the month in which delivery is made unless otherwise advised by Confoil.
(b) Notwithstanding clause 10(a), and unless otherwise agreed by Confoil in writing, all orders for Goods placed through Confoil’s website are due at the time of placing an order.
(c) Payment must be made by cash, credit card, and direct deposit or as otherwise specified by Confoil. All credit card payments attract a credit card surcharge at the rate notified by Confoil from time to time at the time of payment.
11. PAYMENT DEFAULT
(a) If the Purchaser defaults in payment by the due date for an applicable order of any amount payable to Confoil or an Insolvency Event occurs in respect of the Purchaser, then all money which is payable by the Purchaser to Confoil for such order, becomes immediately due and payable on written notice to the Purchaser, and Confoil may, without prejudice to any other remedy available to it:
(1) charge the Purchaser interest on the overdue money during the period of the default at the rate that is 2% per annum higher than the rate fixed as at the date of the default under Section 2 of the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;
(2) charge the Purchaser for all expenses and costs (including legal costs on a full indemnity basis) reasonably incurred by Confoil resulting from the default and in taking whatever action it deems necessary to recover any sum due;
(3) take all necessary action in respect of the Goods in accordance with clause 12;
(4) cease or suspend for such period as Confoil thinks fit, supply of any further Goods to the Purchaser; or
(5) terminate any contract with the Purchaser relating to the applicable order so far as unperformed by Confoil, without effect on the accrued rights of Confoil under such contract.
(b) Confoil reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them.
12. TITLE
(a) Notwithstanding delivery of the Goods to the Purchaser, all right title and interest in the Goods remains with Confoil until the Purchaser has made full payment to Confoil of all and any amounts due and payable to Confoil by the Purchaser for such Goods (“Outstanding Amount”).
(b) All risk in the Goods passes to the Purchaser upon delivery of the Goods to the Purchaser.
(c) If the Goods are re-sold prior to payment to Confoil of the Outstanding Amount, the Purchaser holds the proceeds from the sale of Goods on trust for Confoil. Where the Purchaser has mixed or used the Goods and other materials to create other goods, all right title and interest in those other goods shall immediately pass to Confoil until the Purchaser has made full payment to Confoil of the Outstanding Amount.
(d) The Purchaser shall keep the Goods or goods constructed from the Goods in a fiduciary capacity as bailee for Confoil. Confoil grants a licence to the Purchaser to dispose of the Goods in the normal course of the Purchaser’s business.
(e) Until the date of full payment of the Outstanding Amount the Purchaser must store the Goods clearly identified as the property of Confoil and if requested, must supply, within the time specified by Confoil, an inventory of all Goods in the Purchaser’s possession. The Purchaser must allow any representative of Confoil access to its premises to conduct any stocktake of its Goods upon reasonable notice.
(f) In the event of a default by the Purchaser in respect of any of these terms and conditions including the payment of any Outstanding Amount under these terms and conditions, Confoil has the right (without giving notice and without limiting any other rights or remedies of Confoil) to retake possession of the Goods and the Purchaser authorises Confoil or its representative, servant, or agent to enter the Purchaser’s premises upon which the Goods are housed or stored for the purpose of retaking possession of same. Confoil is not liable for any cost, losses, damages, expenses or other monies incurred or lost by the Purchaser as a result directly or indirectly of Confoil retaking possession of the Goods. In the event Confoil retakes possession of the Goods, Confoil is entitled to sell the Goods free of any claim from the Purchaser.
13. SECURITY
(a) For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) and a term contained in this clause that is defined in the PPSA has the meaning given to it in the PPSA.
(b) The Purchaser acknowledges and agrees with Confoil that:
(1) these terms and conditions constitute a security agreement for the purposes of the PPSA;
(2) Confoil may at its discretion register a financing statement in respect of any security interest created by these terms and conditions; and
(3) a security interest is taken in all Goods previously supplied by Confoil to the Purchaser (if any) and all Goods that will be supplied in the future by Confoil to the Purchaser during the continuation of the parties’ relationship.
(c) The Purchaser undertakes to:
(1) sign any and all further documents and provide any and all further information, such information to be complete, accurate and up to date in all respects, which Confoil may reasonably require to register a financing statement or a financing change statement on the Personal Property Securities Register established under the PPSA;
(2) indemnify and upon demand reimburse Confoil for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any property charged thereby;
(3) not register a financing change statement or an amendment demand in relation to any security interest created by these terms and conditions without the prior written consent of Confoil; and
(4) give Confoil not less than fourteen (14) days prior written notice of any proposed changes in the Purchaser’s name or any other change in the Purchaser’s details.
(d) The Purchaser and Confoil agree that to the extent mentioned by section 115(1)(a)-(r) of the PPSA, they agree to contract out of each of the provisions of the PPSA listed in section 115(1)(a)-(r) of the PPSA and the Purchaser waives its rights under each of the sections of the PPSA referred to in those sections. The Purchaser further waives its right to receive a copy of any financing statement, any financing change statement or any verification statement that is or may be registered, issued or received at any time or which would otherwise be required to be provided by Confoil under the PPSA.
(e) The Purchaser unconditionally ratifies any actions taken by Confoil under clauses 12(a) to 13(d).
14. PURCHASER CLAIMS AND RETURNS
Subject to any rights granted to the Purchaser under the Competition and Consumer Act 2010 (Cth) or other consumer protection legislation and to the maximum extent permitted by law:
(a) No return of Goods will be accepted by Confoil unless the Purchaser has requested and obtained authorisation from Confoil to return those Goods. All freight for returns is at the Purchaser’s cost and the Purchaser will be charged a fee for Confoil’s repackaging of those Goods.
(b) Any Goods returned by the Purchaser to Confoil must be returned in the same order and condition as they were delivered to the Purchaser.
(c) Confoil does not offer or provide exchanges or refunds for Goods due to change of mind. The Purchaser is responsible for ensuring that it has correctly ordered the Goods it requires as an order cannot be cancelled by the Purchaser once it has been accepted by Confoil.
15. USE OF GOODS IN MICROWAVE OVENS
Confoil disclaims any and all liability for use of any Goods comprising aluminium foil used in microwave ovens that have not been used in accordance with the requirements and recommendations of the manufacturer of the relevant microwave oven.
16. TOOLING
(a) If the Purchaser requests that Confoil supply particular Goods for which Confoil has no appropriate tools or dies, Confoil will provide the Purchaser with a quote for the cost of developing and manufacturing the appropriate tools and dies. If the Purchaser accepts the quote, the Purchaser agrees to pay that cost.
(b) The Purchaser agrees that despite the Purchaser bearing the cost for any tool or die development and manufacture, all tools and dies remain the property of Confoil unless otherwise stated in a written agreement between the parties concerning the tools or dies.
(c) If Confoil agrees in a written agreement that the Purchaser owns or has a pecuniary interest in the tool or die, the Purchaser agrees that the tool or die will remain under the control of and on the premises of Confoil at all times unless otherwise agreed to by both parties in writing.
(d) The Purchaser agrees that the technology, processes and intellectual property rights associated with the development and manufacture of any tool or die vests upon their creation in Confoil and cannot be used, copied, altered or sold without Confoil’s prior written permission.
17. LIMITATION OF LIABILITY
(a) To the maximum extent permitted by law, Confoil’s liability under any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied into these terms and conditions by any legislation (“Statutory Warranties”) is hereby excluded.
(b) Where legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under any Statutory Warranty, the liability of Confoil in connection with the Statutory Warranty shall be limited to one or more of the following, at Confoil’s option:
(1) in respect of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(2) in respect of services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again and the Purchaser acknowledges that this limitation of liability is fair in all the circumstances.
(c) To the maximum extent permitted by law, Confoil will not be liable to the Purchaser or any other persons under any circumstances for any indirect, incidental or consequential loss or damage (including loss or damage caused by negligence or wilful acts of default of Confoil, or its employees or agents) whatsoever arising from a breach of any of these terms and conditions or a breach of any other statutory implied warranty, term or condition in relation to the Goods.
(d) Nothing in these terms and conditions is to be interpreted as excluding, restricting or modifying, or having or attempting to have the effect of excluding, restricting or modifying any rights the Purchaser has under applicable laws, including non-excludable rights under the Competition and Consumer Act 2010 (Cth).
18. INDEMNITY
The Purchaser will at all times indemnify Confoil, and Confoil’s officers, employees and agents (“those indemnified”) from and against any loss (including legal costs and expenses) or liability, suffered or incurred by any of those indemnified arising from any claim against those indemnified where the claim arises from or in connection with the provision, supply or use by the Purchaser (or persons to whom the Purchaser has supplied the Goods) of any Goods supplied by Confoil under these terms and conditions except to the extent caused of contributed to by Confoil.
19. FORCE MAJEURE
If as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance or any other cause, of whatever nature, outside of a party’s control, the affected party is unable to perform its obligations under these terms and conditions, the affected party is released from those obligations (except to pay any amounts owing under these terms and conditions) to the extent of such inability.
20. WAIVER
Any failure by a party to enforce any of these terms in respect of any breach by the other party shall not be construed as a waiver of any of that party’s rights or a waiver of that party’s right to enforce the term in respect of that breach in the future. The only persons authorised to waive a breach of a term by the Purchaser is a director or other authorised representative of Confoil.
21. SEVERANCE
If any provision of these terms and conditions are contrary to any State or Federal legislation (for example by being illegal, void or unenforceable) that provision shall be read down to the extent necessary to become valid and enforceable or, if this is not possible, shall be deemed to be severed from these terms and conditions, without affecting the remaining provisions of these terms and conditions.
22. GOVERNING LAW
These terms and conditions shall be governed by and construed according to the laws of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of Victoria.