These terms and conditions constitute the entire agreement between the parties relating to the supply of Goods by Confoil to the Purchaser. 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 is deemed to agree to be bound by these terms and conditions.
Confoil means Confoil Pty Ltd and includes its related parties 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.
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) over the affairs of the person, or the person being an insolvent under administration (as defined under the Corporations Act 2001 (Cth)).
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.
The prices for the Goods are the prices contained in Confoil's price list in effect at the time the Goods are ordered and are subject to change without notice.
The prices for the Goods are exclusive of GST. The Purchaser will be charged GST on all Goods purchased with the exception of Goods exported to an overseas customer.
The terms of payment are net cash, thirty (30) days from the end of the month in which delivery is made, or otherwise as determined by Confoil. 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.
7. PAYMENT DEFAULT
(a) If the Purchaser defaults in payment by the due date 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 or would become payable by the Purchaser to Confoil at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Purchaser, and Confoil may, without prejudice to any other remedy available to it:
(i) charge the Purchaser interest on any money overdue 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;
(ii) 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;
(iii) take all necessary action in respect of the Goods in accordance with clause 8;
(iv) cease or suspend for such period as Confoil thinks fit, supply of any further Goods to the Purchaser; or
(v) terminate any contract with the Purchaser so far as unperformed by Confoil, without effect on the accrued rights of Confoil under any contract.
(b) Confoil reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them.
8. TITLE and 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:
(i) these terms and conditions constitute a security agreement for the purposes of the PPSA;
(ii) Confoil may at its discretion register a financing statement in respect of any security interest created by these terms and conditions; and
(iii) 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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 8(a) to 8(d).
(f) 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 ("Outstanding Amount").
(g) 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.
(h) 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.
(i) 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 without notice.
(j) 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) 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.
9. PURCHASER CLAIMS AND RETURNS
Subject to any rights granted to the Purchaser under the Competition and Consumer Act (Cth) or other consumer protection legislation:
(a) The Purchaser will be deemed to have accepted that any Goods supplied by Confoil are in accordance with the Purchaser’s order unless it notifies Confoil in writing of its claim within 14 days of receipt of the Goods;
(b) The Purchaser will be deemed to have accepted all the details on an invoice provided by Confoil for the Goods as being correct unless it notifies Confoil in writing of its claim within 14 days of receipt of invoice;
(c) No return of Goods will be accepted by Confoil unless the Purchaser has requested and obtained authorisation from Confoil to return those Goods. Under no circumstances will Confoil accept Goods for return six (6) months after the purchase date. 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.
(d) Any Goods returned by the Purchaser to Confoil must be returned in the same order and condition as they were delivered to the Purchaser.
10. USE OF GOODS IN MICROWAVE OVENS
Any Goods comprising aluminium foil must only be used in microwave ovens if they are used in accordance with the recommendations of the manufacturers of the relevant microwave oven.
(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) 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 technology, processes and intellectual property rights associated with the development and manufacture of any tool or die will always remain the property of Confoil and cannot be used, copied, altered or sold without Confoil’s written permission.
12. ORDER VARIATION
(a) Alteration to orders: any request by the Purchaser to alter the size, dimensions or physical properties of Goods and/or tooling will not be accepted in regard to orders for Goods which are either completed or in production unless otherwise agreed to in writing by Confoil.
(b) Cancellation of orders: The Purchaser cannot cancel any part of an order once Confoil has commenced production of the Goods and/or tooling. Where the Purchaser cancels all or part of an order prior to Confoil commencing production of the Goods and/or tooling, the Purchaser must pay to Confoil as liquidated damages the full price of the Goods and/or tooling, (including any exclusive stocks held in advance of orders received) less an amount equivalent to: its current scrap value or any amount received from alternative disposal arrangements.
(c) Deferment of delivery: where the Purchaser requests that Confoil defers delivery of any Goods and Confoil agrees to such deferment, upon Confoil’s election, Confoil may require the Purchaser to pay a warehousing fee specified by Confoil, to apply from the date the deferment is agreed by Confoil until the date of actual delivery of the Goods.
13. LIMITATION OF LIABILITY
(a) Subject to the Competition and Consumer Act (Cth) and any other applicable consumer protection legislation (“CCA”), at Confoil’s sole discretion Confoil’s obligations to the Purchaser in respect of a breach of any of these terms and conditions (whether implied by statute or otherwise) shall be limited to a refund, credit note, repair or the replacement of the Goods.
(b) Subject to the CCA, 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.
(c) Subject to the CCA, Confoil will not be liable for any costs, claims, damages or demands arising from personal injury, loss or damage to, or personal property whatsoever occurring to the Purchaser or its employees or agents by reason of:
(i) the use of Goods or their design, production or processing, including the use of Goods in microwave ovens;
(ii) the delivery of the Goods or any failure to deliver or delay in delivering the Goods;
(iii) any act or omission of Confoil or its servants and agents; or
(iv) any statement or representation made by an employee or agent of Confoil in respect of the Goods.
(d) Subject to the CCA, except as specifically set out in these terms and conditions, any warranty in respect of the Goods is expressly limited to the minimum permitted under the CCA.
(e) Subject to the CCA, replacement, repair or refund of the Goods is the absolute limit of Confoil’s liability howsoever arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for purpose of the Goods or alternatively the sale, use of, storage or any other dealings with the Goods by the Purchaser.
(f) 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 the application of the CCA to the supply of Goods which cannot be excluded, restricted or modified.
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 is referable to:
(a) a breach by the Purchaser of its obligations under these terms and conditions or a breach of the Purchaser’s obligations to the person that the Purchaser sells the Goods to; or
(b) any wilful unlawful, or negligent act or omission of the Purchaser.
15. CHANGE OF OWNERSHIP
The Purchaser agrees to notify Confoil in writing of any change of ownership within seven (7) days from the date of such change and indemnifies Confoil against any loss or damage as a result of the Purchaser’s failure to notify Confoil of any change.
16. POTENTIAL CLAIMS
If there is any claim or likely claim against Confoil in respect of the Goods which comes to the Purchaser’s attention (other than a claim by the Purchaser against Confoil), the Purchaser will immediately inform Confoil providing full details of the claim or likely claim.
17. 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 Confoil’s control, Confoil is unable to perform its obligations under these terms and conditions, Confoil is released from those obligations to the extent of such inability, and the Purchaser shall not be entitled to claim compensation for any such failure by Confoil to perform its obligations.
Any failure by Confoil to enforce any of these terms in respect of any breach by the Purchaser shall not be construed as a waiver of any of Confoil’s rights or a waiver of Confoil’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.
19. 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 accept the jurisdiction of the courts of Victoria.
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.