+61 7 7525 7626
GENERAL TERMS AND CONDITIONS OF SALE
BACKGROUND
a. The Customer wishes to purchase Goods or Services from Allegiant Solutions.
b. Allegiant Solutions has agreed to supply Goods or Services to the Customer from time to time on the following terms.
1. ORDERING
a. The Customer may place an order for Goods or Services from time to time in accordance with Allegiant Solutions’ Sales Order Procedure.
b. Allegiant Solutions may provide a Quotation for Goods or Services to the Customer in accordance with the Sales Order Procedure.
c. If the Customer notifies Allegiant Solutions that it accepts a Quotation and or places an order made in accordance with clause 1(a), then:
(i) subject to payment of the Purchase Price, Allegiant Solutions sells to the Customer the Goods or Services contemplated by that order; and
(ii) the Customer buys the Goods or Services contemplated by that order for the Purchase Price.
d. For clarity, Allegiant Solutions may elect not to accept an order made by a Customer.
2. CANCELLATION OF ORDERS
a. The Customer may not alter or cancel an Order without Allegiant Solutions’ prior written consent.
b. If Allegiant Solutions’ agrees to alter or cancel the Order, the Customer will indemnify Allegiant Solutions against any loss, damage and expense incurred by Allegiant Solutions in relation to the alteration or cancellation of that Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods or Services and all labour and engineering costs incurred by Allegiant Solutions in the execution or part execution of the Goods or Services and including compensation payable to any of Allegiant Solutions’ suppliers and loss of profit.
3. QUOTATIONS AND PRICING
a. Allegiant Solutions Quotations are open for acceptance within the period stated therein or, when no period is stated, within 14 days only after the date of the Quotation.
b. The price in all quotations is Goods or Services and Service Tax (GST) is exclusive unless clearly stated otherwise.
4. INVOICING AND PAYMENT
a. Unless otherwise agreed in writing, Allegiant Solutions accepts the Customer’s signed purchase orders subject to the condition that the Customer agrees to pay the Purchase Price for the Goods or Services in full to Allegiant Solutions in accordance with the Payment Terms.
b. Allegiant Solutions may modify the Purchase Price by written notice to the Customer from time to time subject to the availability of raw materials.
c. Customer must not set off any money owing or alleged to be owing by Allegiant Solutions against money due by the Customer to Allegiant Solutions.
5. TITLE AND RISK
a. Allegiant Solutions retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by Allegiant Solutions. Until payment in full has been received, the following terms apply.
b. Notwithstanding that the title in the Goods remains with Allegiant Solutions until payment has been received in full, the Customer may sell such Goods or use the Goods in a manufacturing or construction process in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of Allegiant Solutions. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for Allegiant Solutions and the Customer is under a duty to account to Allegiant Solutions for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to Allegiant Solutions for Goods supplied.
c. Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of Allegiant Solutions, store them in such a way they are clearly identified as property of Allegiant Solutions and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by Allegiant Solutions.
d. Allegiant Solutions is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and take possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute, or in any other way. In order to exercise such entitlement, Allegiant Solutions and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or of any third party. The Customer agrees to obtain the consent of any such third party to such entry by Allegiant Solutions and to indemnify Allegiant Solutions and its agents for any liability arising from any entry upon such third parties’ premises. Allegiant Solutions and its agents agree to take all reasonable care in removing the Goods from such premises but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises cause by the removal of the Goods.
e. The retention of title arrangement described in this clause 5, constitutes the grant of a purchase money security interest by the Customer in favour of Allegiant Solutions in respect of all present and after acquired Goods supplied to the Customer by Allegiant Solutions.
f. The Customer must immediately, if requested by Allegiant Solutions, sign any documents, provide all necessary information and do anything else required by Allegiant Solutions to ensure that Allegiant Solutions’ purchase money security interest is a perfected security interest.
g. The Customer will not enter into any security arrangement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until Allegiant Solutions has perfected its purchase money security interest.
h. For any Goods supplied that are not Goods that are used predominately for person, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4), 135, 142, or 143 of the PPSA in relation to the Goods.
i. The Customer hereby waives any rights the Customer may otherwise have in relation to:
(i) Receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132, or 135;
(ii) Apply to a Court for an order concerning the removal of an accession under section 97;
(iii) Object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135.
(iv) Receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest Allegiant Solutions may have in Goods supplied to the Customer from time to time.
j. For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest”, and “verification statement”, have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
k. The Customer bears the risk relating to the Goods from the time the Goods are dispatched by Allegiant Solutions premises or paid in full, whichever is earlier, regardless of transport carrier or shipping arrangements.
l. Without limiting any other remedies available to Allegiant Solutions, if the Customer fails to pay any amount payable pursuant to the Payment Terms, the Customer must pay interest on that amount at the rate of 11% unless otherwise agreed.
m. Late payments made outside the Payment Terms will incur a late accounting fee of $5.
n. If the quotation and purchase order specifies that the Goods will be delivered by a distributor and or an agent, then Allegiant Solutions will engage a third party distributor and or an agent to deliver the Goods.
o. If the quotation and purchase order specifies that the Goods will be delivered by Allegiant Solutions, then Allegiant Solutions will deliver the Goods.
p. If the quotation and purchase order specifies that the Customer will collect the Goods, then the Customer must collect the Goods within 4 days of Allegiant Solutions notifying the Customer that the Goods are ready for collection.
q. Allegiant Solutions may agree to hold Goods for the customer until they are required. In this event, Allegiant Solutions will invoice these Goods and move them into a specific storage area for that customer. If the Goods are not collected within 3 months, storage fees will be charged at an agreed rate or Goods are to be removed from site.
r. If Allegiant Solutions provides thread protectors on Goods supplied, these are to be returned to Allegiant Solutions within 6 months of receipt. If the thread protectors are not returned to Allegiant Solutions within this time frame, the customer will be charged at the applicable rate for these.
s. To the maximum extent permitted by law, all terms, conditions or warranties that would be implied into supplier terms and conditions or in connection with the supply of any Goods or services by Allegiant Solutions under law or statute or custom or international convention are excluded.
6. USE OF GOODS
The Customer must only use the Goods in accordance with the applicable Specification.
7. LIABILITY
a. Subject to clauses 7(c) and 7(d), any liability of Allegiant Solutions for any loss or damage, however caused (including by the negligence of Allegiant Solutions), suffered by the Customer in connection with the Goods or Services is limited to the monetary amount paid by the Customer to Allegiant Solutions for the Goods or Services.
b. The limitation set out in clause 7(a) is an aggregate limit for all claims, whenever made.
c. Subject to clause 7(d), Allegiant Solutions is not liable for any Consequential Loss however caused (including by the negligence of Allegiant Solutions), suffered or incurred by the Customer in connection with Goods or Services.
d. If the Competition and Consumer Act 2010 (Cth) or any other legislation implies a condition or warranty into this Terms and Conditions in respect of Goods or Services supplied, and Allegiant Solutions’ liability for breach of that condition or warranty may not be excluded but may be limited, clauses 7(a), 7(c) and 8 do not apply to that liability and instead Allegiant Solutions’ liability for such breach is limited to, in the case of supplying Goods or supplying equivalent Goods or replacing the Goods, or in the case of a supply of Services, Allegiant Solutions supplying the Services again or paying the cost of having the Services supplied again.
8. INDEMNITY
a. The Customer is liable for, and indemnifies Allegiant Solutions from and against, all loss or damage (including legal costs) incurred or suffered by Allegiant Solutions however caused in connection with:
(i) any use of the Goods other than in accordance with the Specification;
(ii) any damage to the Goods in transit; or
(iii) damage to property in connection with the provision or use of the Goods.
9. INTELLECTUAL PROPERTY RIGHTS AND REBRANDING
a. The Customer acknowledges and agrees that nothing in these Terms and Conditions grants the Customer any Intellectual Property Rights of Allegiant Solutions.
b. The Customer must not remove an Allegiant Solutions Mark from the Goods or represent that the Goods are associated with any Trade Mark other than an Allegiant Solutions Mark unless otherwise agreed between the parties in writing.
10. CONFIDENTIAL INFORMATION
a. The Customer agrees to keep confidential, and not to use or disclose, other than as permitted by this Terms and Conditions, any Confidential Information provided to or obtained by the Customer.
b. The obligations of confidence in clause 10(a) do not apply to Confidential Information:
(i) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency, as long as the Customer:
A. discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
B. before disclosing any information, gives all available notice to Allegiant Solutions and takes all available steps (whether required by Allegiant Solutions or not) to maintain such Confidential Information in confidence;
(ii) that is in a public domain otherwise than as a result of a breach of these Terms and Conditions or other obligation of confidence; or
(iii) that is already known by, or rightfully received, or independently developed, by the Customer free of any obligation of confidence.
c. The customer may use and disclose Confidential Information only with the prior written consent of Allegiant Solutions.
d. If the Customer discloses Confidential Information under clause 10(c) the Customer must ensure that such information is kept confidential by the person to whom it is disclosed and is only used for the purpose of performing its obligations under these Terms and Conditions.
e. Allegiant Solutions complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals. For further information on the way Allegiant Solutions manages personal information, please contact admin@ascasing.com.
11. TAXES
a. The Customer must pay all stamp duty, taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed, levied, assessed or payable in Australia or overseas in connection with these Terms and Conditions.
b. Except under clause 11(c), the consideration for a Supply made under or in connection with these Terms and Conditions does not include GST.
c. If a Supply made under or in connection with these Terms and Conditions is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
(i) the Customer must pay Allegiant Solutions an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under these Terms and Conditions for that Supply); and
(ii) Allegiant Solutions must give the Customer a Tax Invoice for the Supply.
d. In this clause 11 capitalised terms that are not defined in these Terms and Conditions have the meaning given in the New Tax System (Goods or Services and Services Tax) Act 1999 (Cth).
12. GENERAL
a. The laws of Queensland, Australia govern these Terms and Conditions.
b. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
c. The Customer must not assign, in whole or in part, or novate the Customer’s rights and obligations under these Terms and Conditions without the prior written consent of Allegiant Solutions.
d. Allegiant Solutions may subcontract its obligations under these Terms and Conditions.
e. where these Terms and Conditions contemplate that a party may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, that party may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless these Terms and Conditions expressly requires otherwise.
f. Each provision of these Terms and Conditions will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
g. These Terms and Conditions supersedes all prior representations, communications, statements, conduct and understandings, whether oral or in writing, relating to its subject matter.
13. DEFINITIONS AND INTERPRETATION
13. Definitions and interpretation
a. In these Terms and Conditions:
Confidential Information means any information:
(i) relating to the business and affairs of Allegiant Solutions;
(ii) relating to the customers, clients, employees, sub-contractors or other persons doing business with Allegiant Solutions;
(iii) which is by its nature confidential by Allegiant Solutions;
(iv) which is designated as confidential by Allegiant Solutions; or
(v) which the Customer knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of Allegiant Solutions.
Consequential Loss means consequential loss, indirect loss, loss of revenue, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain damages, lost opportunities (including opportunities to enter into arrangements with third parties) or loss or damage in connection with claims against the Customer by third parties.
Customer means the person or entity specified in the quotation.
Goods means the Goods as specified in a Quotation by Allegiant Solutions to the Customer to which these Terms and Conditions apply, or by the Customer in a purchase order supplied by the Customer to Allegiant Solutions or as otherwise agreed between the parties.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes and copyright, moral right, patent, Trade Mark, registered or unregistered design, registered or unregistered plant breeders’ right, trade secret, knowhow, right in relation to trade or business or company name, indication or source or appellation or origin or other proprietary right, or right of registration of such rights.
Insolvency Event means:
(i) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the Customer;
(ii) the Customer or the Customer’s property or undertaking becomes subject to a personal insolvency arrangement under Part X of the Bankruptcy Act 1966 (Cth) or a debt Terms and Conditions under Part IX of the Bankruptcy Act 1966 (Cth);
(iii) the Customer is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
(iv) the Customer ceases to carry on business; or
(v) an application or order is made for the liquidation of the Customer or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the Customer, otherwise than for the purpose of an amalgamation or reconstruction.
Ordering Procedure means the ordering procedure specified in the quotation.
Allegiant Solutions Mark means any Trade Mark owned by, licenced to or nominated by Allegiant Solutions from time to time.
Payment Terms means the payment terms specified in the quotation.
Purchase Price in respect of Goods or Services means the purchase price for the Goods or rate for the Services set out in a Quotation, as amended in accordance with clause 4.b) from time to time or as otherwise agreed between the parties.
Quotation means a written quotation provided by Allegiant Solutions to the Customer specifying a Purchase Price for the proposed provision of Goods or Services and or services.
Services means the Services as specified in a Quotation by Allegiant Solutions to the Customer to which these Terms and Conditions apply, or by the Customer in a purchase order supplied by the Customer to Allegiant Solutions or as otherwise agreed between the parties.
Specification means the specifications provided to Allegiant Solutions by the Customer in respect of each of the works and or Goods or Services in the Customer’s purchase order or as otherwise agreed between the parties in writing, as amended by written notice between the parties from time to time.
Trade Mark includes:
(i) registered trade marks and trade mark applications;
(ii) unregistered trade marks; and
(iii) any and all corresponding foreign applications and registrations.
b. In these Terms and Conditions:
(i) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, or ‘for example’ (or similar phrases) does not limit what else might be included;
(ii) no rule of construction applies in the interpretation of these Terms and Conditions to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it; and
(iii) a reference to a party is a reference to Allegiant Solutions or the Customer, and a reference to the parties is a reference to both Allegiant Solutions and the Customer.