“Agreement” means the agreement for supply of Goods between PLASSON and the Customer of which these “Conditions of Sale” form part.
“Charges” includes all monies payable by the Customer to PLASSON in relation to the supply of goods.
“Confirmation of Order” means a written document which sets out a description of the Goods, the Charges and other necessary terms and which may
include details of the Customer’s offer to purchase the Goods.
“Customer” means the entity which orders Goods from PLASSON or to which Goods are delivered by PLASSON and includes the Customer’s agents and
“Ex Works” has the same meaning as is ascribed to that term in Incoterms 1990.
“Goods” includes parts and supplies which may subsequently be supplied under any warranty given in relation the Goods.
“GST” means goods and services tax imposed in Australia by the GST law.
“PLASSON” means Plasson Australia Pty Ltd ACN 053 788 891, its agents and assigns.
“Permitted Security Interest” means any security interest which PLASSON consents to or otherwise agrees in writing with the Customer will be a Permitted
Security Interest for the purposes of these terms and conditions. “Persons” includes corporations, partnerships and unincorporated associations.
Words importing the singular number shall include the plural and vice versa.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended. “PPSR” means the Personal Property Security Register. “Purchase Money
Security Interest” that has the meaning prescribed to it in the PPSA. “Security Interest” includes any security interest under the PPS Act.
2.1. These Conditions of Sale apply to all agreements for the supply of Goods by PLASSON and are varied or excluded only where such variation or
exclusion is in writing and signed by a director of PLASSON and either is expressed to be a variation of these Conditions or is so inconsistent with them
as to allow no other interpretation than that there has been an intentional variation of them.
2.2. Where a Customer has agreed to purchase goods from PLASSON upon the basis of these Conditions of Sale, these Conditions of Sale shall be
incorporated into every subsequent agreement for purchase of Goods by that Customer from PLASSON unless specifically varied or excluded in the
manner prescribed by clause 2.1.
3. QUOTATIONS AND ENTRY INTO AGREEMENT
3.1. No brochure, catalogue, price list, quotation or other communication published or forwarded by PLASSON to the Customer, whether in writing or not,
shall constitute anything other than an invitation by PLASSON to the Customer to do business and shall not represent that the Goods or Charges referred
to in them shall be available to the Customer. Any purchase order placed by the Customer with PLASSON constitutes only an offer to purchase Goods.
Notwithstanding any prior communication between PLASSON and the Customer, there shall be no obligation by PLASSON to accept an offer to purchase
Goods made by a Customer. The Customer’s offer is only accepted by PLASSON issuing a Confirmation of Order to the Customer.
3.2. In the event of any inconsistency between the Customer’s purchase order or other request and PLASSON’s Confirmation of Order (which includes
these Conditions), the terms of the Confirmation of Order shall prevail.
3.3. Unless otherwise stated in the Confirmation of Order prices quoted are exclusive of GST and the Customer is required to pay any GST payable by
PLASSON in respect to the supply of Goods at the same time as the price is required to be paid by the Customer to PLASSON.
4. FUNCTIONALITY AND PERFORMANCE
4.1. All information, specifications or other data provided by PLASSON in relation to the Goods represent approximations only and small deviations or
slight variations from them which do not substantially diminish the functionality or performance of the Goods will not entitle the Customer to either reject
the Goods or make any clam in respect of them.
4.2. Information provided by PLASSON in relation to the performance of Goods represents only a guide as to the performance of the Goods under
optimum operating conditions.
4.3. Without limiting the operation of Clause 4.2, PLASSON may at its sole discretion provide the Customer with training manuals and other materials in
relation to the Goods. PLASSON gives no representation or warranty as to the accuracy of such materials or the use of them by the Customer.
5.1. The Customer shall pay to PLASSON all Charges within thirty (30) days from the date of the Invoice without reduction or deferment on account of any
claim, counterclaim or setoff.
5.2. The Customer acknowledges that the cost of transportation and freight for the Goods is not included in the Charges and the Customer shall pay a
reasonable additional fee for such costs. All other charges such as duty, insurance and taxes and other related expenses shall unless otherwise agreed in
writing) be paid by the Customer.
5.3. Should the Customer fail to pay any amount when due to PLASSON, the Customer shall be liable to pay to PLASSON without demand interest
thereon at the rate of 1% above the rate charged on commercial overdraft accounts in excess of $100,000.00 applicable from time to time and charged
by PLASSON’s bankers as nominated by Plasson at the relevant time. Interest payable hereunder shall be compounded monthly and calculated from the
due date for payment to the date upon which payment is actually made.
5.4. Notwithstanding anything else appearing in the Agreement, all Charges shall immediately become due if the Customer shall fail to make any payment
when due or shall become subject to the bankruptcy laws or enter into any composition with its creditors or enter into any liquidation or suffer a receiver or
receiver and manager to be appointed for all or part of its assets.
5.5. Where payment of the Charges or part of the Charges is due prior to delivery of the Goods and where the Customer fails to make such payment,
PLASSON may withhold delivery and give the customer a notice requiring payment to be made within seven days. Should the Customer fail to make the
payment which is due within the time required by the notice, PLASSON may terminate the Agreement.
6. PROPERTY OF GOODS PURCHASED
6.1. No legal or equitable title to the Goods shall pass to the Customer until payment in full has been made by the Customer not only of all Charges for all
Goods the subject of the Agreement (unless waived in writing by PLASSON) but also until payment has been made of all Charges for all goods previously
supplied by PLASSON to the Customer.
6.2. Subject to Clause 6.5, until the legal and equitable title to the Goods passes to the Customer, the Customer shall
(a) Hold the Goods as bailee of PLASSON returnable at will and without prior demand by PLASSON;
(b) Store the Goods in such a manner as enables them to be readily identified and distinguished from all other goods held by the Customer and, where
such other goods include goods previously supplied by PLASSON to the Customer and in respect of which title has passed to the Customer, then the
Customer shall attach to the Goods in respect of which title has not passed a notice indication that the Goods are held as bailee for PLASSON.
(c) Upon demand by PLASSON immediately deliver up the goods to PLASSON; and
(d) Authorise and the Customer does here by authorise PLASSON to enter upon the premises upon which the Goods are stored for the purpose of taking
possession of them.
Some Goods may require recalibration annually or at other periods nominated by PLASSON. The Customer may at its own cost transport and deliver the
Goods to and from PLASSON’s nominated premises from time to time. On receipt of the Goods, PLASSON agrees to recalibrate the Goods (if necessary)
provided that the Customer pays PLASSON its then current service charges in respect of such
8. INTELLECTUAL PROPERTY LICENCE
PLASSON hereby grants to the Customer a nonexclusive licence to use any software or firmware used in connection with the Goods and supplied by
PLASSON. The licence shall be subject to any terms and conditions imposed by PLASSON or the owner of copyright in the software or firmware.
9.1. If Plasson sells the Goods to a third party financier (the “Financier”) at the request of the Customer, then PLASSON agrees to grant the licence
referred to in Clause 10 to the Customer.
9.2. The Customer represents and warrants to PLASSON that if PLASSON sells the Goods to a Financier at the request of the Customer, the Customer
shall continue to be bound by all of the terms of the Agreement in relation to the use of the Goods as if the Customer continued to be the legal and
equitable owner of the Goods.
10. DELIVERY AND RISK
10.1. The Goods are sold on an Ex Works basis: delivery of the Goods will occur when the Goods are placed at the disposal of the Customer at
PLASSON’s premises and risk of loss or damage to the Goods then passes to the Customer. In these circumstances, PLASSON may agree to arrange
carriage of the Goods for the Customer, but will do so as the agent for the Customer and delivery will occur and risk will pass when the Goods are placed
at the disposal of the carrier. The Customer shall pay to PLASSON its Charges for carriage incurred upon the Customer’s behalf.
10.2. Delivery dates represent only an estimation of the date of delivery of the Goods and are not binding on PLASSON. Nothing in the Confirmation of
Order shall be construed as making time of the essence in the Agreement unless it is expressly stated to be so.
10.3. PLASSON reserves the right to deliver the Goods by installments and to invoice the Customer for each installment of Goods delivered where, in the
opinion of PLASSON, it is reasonable to do so.
10.4. Failure by the Customer to pay for any installments, or any other amounts when due, shall entitle PLASSON to withhold or delay delivery of any
10.5. If PLASSON determines that it is or may be unable to deliver the Goods within a reasonable time or at all, PLASSON may at its sole discretion
terminate the Agreement. In the event of termination the Customer shall have no claim against PLASSON for any damage, loss or expense whatsoever.
10.6. If PLASSON is unable to effect delivery, PLASSON may store the Goods and charge the Customer for all costs and expenses associated with such
storage and delayed delivery.
10.7. Subject to any express warranty provided in writing by PLASSON to the Customer, failure by the Customer to notify PLASSON within seven days of
delivery that the Goods are not in accordance with their description in the Confirmation of Order shall constitute an unqualified acceptance of the Goods
and a waiver by the Customer of all claims with respect to the Goods.
10.8. In arranging carriage, storage, insurance and forwarding of the Goods PLASSON shall at all times be acting as the Customer’s agent and all
Charges in relation to same shall be reimbursed by the Customer. This clause shall also apply to any partial delivery of the Goods.
11. IMPLIED TERMS AND LIMITATION OF LIABILITY
11.1. Where conditions, warranties or other rights for the benefit of the Customer are implied or given in respect of the Agreement by Competition and
Consumer Act, 2010 and / or the Sales of Goods Act 1896 (as amended) or other laws and it is not lawful or possible to exclude the same, then such
conditions, warranties or other rights shall (but only to the extent required by law) apply to the Agreement, Save as aforesaid all such implied conditions,
warranties and rights are hereby excluded.
11.2. To the extent permitted by law, liability of PLASSON for breach of this contract by PLASSON or negligence of PLASSON or for breach of any
conditions or warranty implied by the Competition and Consumer Act, 2010 and / or the Sales of Goods Act 1896 (as amended) shall be limited to one of
the following at PLASSON’s option:
(a) the replacement of the Goods or the supply of equivalent Goods; or
(b) the repair of the Goods; or
(c) the payment of the costs of replacing the Goods or of acquiring equivalent Goods;
(d) the payment of the cost of having the Goods repaired; and in the case of services supplied, to one of the following (as PLASSON may
determine): (1) the supplying of the services again, or (2) the payment of the costs of having the services supplied again.
11.3.Save as expressly provided in any written warranty provided in writing by PLASSON to the Customer and in Clauses 11.1 and 11.2 and not
withstanding any implication arising from any other clauses in the Agreement, PLASSON shall not be liable to the Customer or any person claiming under
it in contract or in tort for, or in respect of, any direct, indirect or consequential loss, damage, expense or injury suffered by the Customer or any other
person whatsoever, arising out of, in connection with or relating to the performance,
non-performance or any breach of the Agreement (including, by way of illustration and not in limitation, liability due to the negligence or wilful default of
PLASSON) or any matter relating to the Agreement or any error (whether negligent or not) in information supplied to the Customer before or after the date
of the Agreement in connection with its subject matter. “Consequential loss” shall include but not be limited to loss of profit, use or good will (or similar
financial loss), payment made or due to any other person and any loss or damage caused by delay in the performance of any obligation, together with any
expenses incurred by the Customer in connection therewith, arising therefrom or incurred in mitigation or attempted mitigation of such loss or damage.
11.4. Clause 11.3 shall apply to all express warranties provided in writing by PLASSON except to the extent that those warranties specifically provide
11.5. Where any law implies into the Agreement a condition that the Goods are of merchantable quality, and the Goods are purchased by the Customer for
particular purpose, the Goods will not be considered by the Customer as being fit for any other purpose, whether or not that other purpose is one for which
goods of that kind are commonly bought.
12.1. Where PLASSON agrees to supply Goods upon the condition that a deposit of part or all of the charges is paid prior to delivery (“the Deposit”), in the
event that the Customer terminates the Agreement or fails to take delivery of the Goods or is otherwise in breach of its obligations to PLASSON so that
PLASSON is entitled to terminate the Agreement, the Customer shall forfeit ten per cent of the Deposit to PLASSON for PLASSON’s benefit and
PLASSON shall refund the balance to the Customer.
12.2. The forfeiture of the Deposit shall not be deemed any limitation, in damages or otherwise including damages for loss of profits, of the liability of the
Customer to PLASSON.