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TERMS & CONDITION

Sonnen Pty Limited ABN 85 008 579 726 – Terms and Conditions of Sale

Interpretation

1. In these conditions:

a. Seller” means Sonnen Pty Limited ABN 85 008 579 726 trading as General Steel the provider of the goods and services.
b. “Purchaser” means the purchaser of the goods or services.
c. “Goods” means any goods and/or services supplied by the seller.
d. “Purchase Order” means the purchaser’s Purchase Order including the purchaser acceptance of the seller’s Quotation.
e. “Address” means the premises address identified in the Purchaser’s order where the Goods are to be supplied and/or fitted.
f. “ISPA” means the Building and Construction Industry Security of Payment Act 1999 (NSW).
g. “Invoice” means invoices issued pursuant to the ISPA.
h. “PPSA” means the Personal Property Securities Act 2009 as amended.
i. “PPS Register” means the personal property securities register established under section 146 of the PPSA;
j. “CCA” means the Competition & Consumer Act 2010;
k. Prescribed Terms means any terms, conditions, guarantees and warranties which the Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.
l. Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.

General

2. The headings in these Conditions are provided for convenience only and do not affect the interpretation thereof
3. These conditions (which will only be waived or varied in writing signed by the seller) will prevail over all conditions of the transaction to the extent of any inconsistency.
4. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the CCA) and which by law cannot be excluded, restricted or modified.
5. All goods supplied, work and labour done and services under any quotation and invoice are subject to these General Terms & Conditions of Sale (“GTCS”) of the seller as set out herein.
6. All goods supplied, work and labour done and services under any quotation and invoice are subject to the ISPA.
7. To the extent of any inconsistency between the GTCS and ISPA, the ISPA shall prevail.
8. All goods supplied, work and labour done and services provided by the seller are subject to these terms and conditions.
9. These conditions (which shall only be waived in writing signed by the seller) shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistency.
10. The Contract is formed by the seller’s acceptance of the Purchase Order. Written acceptance of the Purchase Order by the seller or commencement of performance of any work, services pursuant to the Purchase Order by the seller shall constitute acceptance of the Purchase Order. The contract is also formed by the Purchase’s acceptance of the seller’s quote. Written acceptance of the seller’s quote by the purchaser or payment of deposit amount specified on the seller’s quote shall constitute acceptance of the Purchase Order.
11. All Purchase Orders supplied by the Purchaser are subject to acceptance by the seller and no Contract between the seller and the Purchaser comes into existence until the seller accepts the Purchase Order.
12. These Conditions apply to all Contracts entered into between the seller and the Purchaser.
13. Subject to any Prescribed Terms, these Conditions embody the sole Terms and Conditions of the Contract between the seller and the Purchaser and supersede all other conditions and agreements between the parties, unless expressly amended in writing by the seller
14. These Conditions shall without further notice apply to all future transactions between the seller and the Purchaser in relation to the sale and purchase of Goods and/or Services, whether or not this document is delivered or executed in the course of the transaction.
15. For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Purchaser (including without limiting the foregoing those included in a Purchase Order or like document from the Purchaser) shall apply to or form part of the Contract and any such terms and conditions by the Purchaser are expressly rejected by the seller, except and to the extent otherwise agreed in writing by The seller.
16. No variation or abrogation of these Conditions shall be effective unless it is evidenced in writing signed on behalf of the seller.
17. These Conditions supersede all terms and conditions of sale previously issued by the seller.
Acceptance of Conditions
18. The Purchaser shall be deemed to have accepted delivery of the goods upon the seller causing delivery of same or installing of the goods at the premises address.
19. Upon delivery by the seller to the Purchaser, the goods shall be at the Purchaser’s risk notwithstanding that the seller may be required to install, set up or perform any service in connection with the goods.
20. By acceptance of the delivery of the goods the Purchaser expressly acknowledges that:

a) The Purchaser placed a valid purchase order with The seller for the supplied goods to be supplied to the Purchaser; and/or
b) The Purchaser placed a valid order with The seller for the goods to be supplied and/or fabricated at an agreed sum for the Purchaser; and
c) The General Terms & Conditions of Sale were known to the Purchaser at the time the Purchaser placed its purchase order and that the purchase order was accepted by The seller; and
d) The Purchaser agrees that these conditions (which shall only be waived in writing signed by the seller) shall prevail over all conditions of the Purchaser order to the extent of any inconsistency.
e) The Purchaser agrees to hold harmless and indemnify The seller for any and all legal fees and expenses incurred by it in any attempt at recovery of any unpaid sums from the Purchaser with respect to this and any other subsequent invoice.
f) The Purchaser shall be deemed to have accepted, understood, and acknowledged to be bound by these General Terms & Conditions of Sale, at the time of placing the Purchase Order.
g) Unless otherwise stated, all quotations are valid for fifteen (15) days from the date of issue, after which, quotations may be withdrawn by the seller and are subject to written confirmation.

21. Goods will not be accepted for credit unless the seller has given prior written approval and all transport charges pre-paid.
Price Variations

22. Quotations are based on the current cost of materials, labour and expenses and may be subject to increase in the event of changed of instructions or increased costs and expenses.
23. Prices shown are based on currency exchange and duty rates applicable at date of quotation. In the event of variations of greater than 2% in either rate, between quotation date and delivery date, prices will be adjusted.
24. Prices of imported products are based on current prices from country of origin. These prices may change.
25. The seller’s price lists are subject to variation without notice.
26. Prices quoted include all materials, services, labour and delivery in accordance with the seller’s specifications included with and referred to in the body of the quotation. Prices will be adjusted for any variation or addition to these specifications requested. Variations include supply of or variation to a complete specification not available at time of quotation and not included or referred to in the quote specifications.
Seller’s Quotations
27. Unless previously withdrawn, the seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
Delivery
28. While the seller endeavours to keep delivery dates, any delay of delivery, for any reason whatsoever, will not entitle the Buyer to claim for any consequential loss or damage or to cancel, rescind or terminate the agreement.
29. Should circumstances beyond the control of the seller prevent or hinder delivery, the seller will be free from any obligation to deliver goods while such circumstances continue. For as long as such circumstances exist, the seller may, at its option, cancel, rescind or terminate all or any part of the contract or keep the contract on foot until such circumstances have ceased. Such circumstances beyond the control of the seller include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of raw materials; Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems.
30. Goods shall be delivered to the address specified in the Purchaser’s Order as the address for delivery unless agreed to in writing between the parties.
31. No deliveries will be made or any despatches affected on public holidays or during such times as the Seller may be closed for annual holidays or other reasons.
32. The delivery times made known to the Purchaser are estimates only and the seller is not liable for late delivery or non-delivery.
33. In the event that the Purchaser specifies a delivery date, the seller shall use its best endeavours to comply with the Purchaser’s requests. In no circumstances will the seller be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Purchaser’s request for delivery at a certain time. The Purchaser acknowledges and agrees that it will not make any claim against the seller for any loss or damage as a result of a late delivery. Should delivery be required to more than one address written notice should be provided to the seller at the time of the order and the Purchaser will be responsible for payment of any additional delivery costs.
Instalment Deliveries
34. Deliveries by instalments must be requested by the Buyer within the times stipulated in the contract.
35. Where the Buyer fails to request or accept instalment deliveries in accordance with the terms of the contract:

(a) The seller may store the goods at the risk and cost of the Buyer; and
(b) The Buyer will be deemed to be in default of payment for the delivery.

36. Where goods are ordered for delivery by instalments, each instalment delivery is deemed to be a separate order and a separate contract performed by the seller upon delivery of that instalment. Acceptance of Delivery
37. The Purchaser shall be deemed to have accepted delivery of the goods upon the seller causing delivery of same or installing of the goods at the premises address
38. The Buyer will inspect the goods immediately upon delivery to the Buyer or upon collection of that order by the Buyer’s agent or courier as the case may be.
39. The Purchaser will be deemed to have accepted the goods as being in accordance with its order.
40. Upon delivery by the seller to the Purchaser, the goods shall be at the Purchaser’s risk notwithstanding that the seller may be required to install, set up or perform any service in connection with the goods.
41. In the event of justified objection notified by the Buyer to the seller in accordance with these terms, the seller may, at its option:

a. Reduce the purchase price by agreement with the Buyer;
b. Accept the return of the goods and, subject to the goods being returned in the same condition as when they were delivered to the Buyer, refund to the Buyer the purchase price; or
c. Replace the goods and no additional claims of any nature whatsoever may be made against the seller .

42. Goods will not be accepted for credit unless the seller has given prior written approval and all transport charges pre-paid.
Claims
43. All claims against the seller regarding the quality, nature, fitness, suitability, conformance with description or defects of the goods must be made in writing to the seller within 7 days of delivery. The seller does not accept liability for any such claim not made in accordance with these terms.
Packing
44. The cost of any special packing and packing materials used in relation to the goods is at the Purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.
Storage
45. The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Purchaser within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller requests the Purchaser to provide delivery instructions.
Cancellation
46. Orders placed with the seller cannot be cancelled without the written approval of the seller. In the event that the seller accepts the cancellation of any order placed with it. It shall be entitled to charge a reasonable fee for the processing and acceptance of the Purchaser’s order and request for cancellation.
Insurance
47. The seller, during transit, insures all goods but no claim will be recognised unless lodged in writing with the seller within seven (7) days from receipt of goods provided that no claim will be met unless approved by the Seller’s insurers.
Risk
48. Risk in each order will pass to the Buyer upon delivery of that order to the Buyer or upon collection of that order by the Buyer’s agent or courier as the case may be
49. Subject to clause 35, where, in accordance with these terms, the seller accepts return of any goods, risk in those goods will revert to the seller upon delivery of the goods to the seller or upon collection of the goods by the seller’s agent or courier as the case may be.
50. Any property of the Buyer’s under the seller’s custody or control will be entirely at the Buyer’s risk as regards loss or damage caused to the property or by it.

Retention of Title
51. Notwithstanding delivery of the goods to the Buyer, until the Buyer has effected full payment for the goods and any other goods previously supplied by the seller:

(a) Legal title to the goods will remain with the seller;
(b) The risk in the goods will pass to the Buyer on delivery to the Buyer or its agent;
(c) The relationship between the seller and the Buyer will be fiduciary;
(d) The Buyer will:

(i) hold the goods as bailee for the seller and the bailment continues in relation to each of the goods until the price of the goods has been paid in full;
1. (ii) keep these goods separate from other goods; and
2. (iii) label the goods so that they are identifiable as the goods of the seller;

(e) In the event that the Buyer uses the goods in some manufacturing or construction process of its own or of some third party then the Buyer will hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the seller. Such part will be deemed to equal in dollar terms the amount owing by the Buyer to the seller at the time of receipt of such proceeds.

52. In connection with the goods while they remain the property of the seller, the Purchaser
agrees with the seller that:
h) The Purchaser has no right or claim to any interest in the goods to secure any
liquidated or unliquidated debt or obligation the seller owes to the Purchaser;
i) The Purchaser cannot claim any lien over the goods;
j) The Purchaser will not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorised by the seller;
k) Where the Purchaser is in actual or constructive possession of the goods:
i. The Purchaser will not deliver them or any document of title to the goods to any person except as directed by the seller; and
ii. It is in possession of the goods as a bailee of those goods and owes the seller the duties and liabilities of a bailee.
53. if the Purchaser supplies any of the goods to any person before all moneys payable by the Purchaser have been paid to the seller (and have not been claimed or clawed-back by any person standing in the place of or representing the purchaser), the purchaser agrees that:
l) It holds the proceeds of re-supply of the goods on trust for and as agent for the seller immediately when they are receivable or are received;
m) It must either pay the amount of the proceeds of re-supply to the seller;
n) Notwithstanding the provisions above the seller shall be entitled to maintain an action against the Purchaser for the purchase price.

54. The Buyer is not an agent of the seller in any sale of the goods by the Buyer.
55. After the happening of an Event of Default, the seller may without demand retake possession of the goods and may without notice sell the goods on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the Buyer irrevocably authorises and licenses the seller and its servants and agents to enter any premises where any goods may be stored and to take possession of the goods.
PERSONAL PROPERTY SECURITIES ACT 2009
56. Unless otherwise defined in these terms, the capitalised terms and expressions used in clauses 56 to 66 have the meanings given to them in the Personal Property Securities Act 2009 (Cth) (PPSA).
57. The Buyer acknowledges and agrees that it will grant to the seller a Security Interest in the goods and their Proceeds, including any Accounts, Accessions and Commingled Goods.
58. The Buyer acknowledges that any purchase by it on credit terms from the seller or any retention of title supply pursuant to these terms, Attaches on delivery of the relevant goods and constitutes a Purchase Money Security  Interest.
59. The Buyer agrees that:

(a) These terms or, subject to the seller giving the Buyer at least 14 days notice, such other terms and conditions as the seller may adopt from to time, apply to the supply of goods by the seller to the Buyer to the exclusion of all other terms and conditions of sale or purchase to the extent permitted by law and constitute a Security Agreement pursuant to the PPSA;
(b) No variation to these terms will be of any effect unless agreed to by the seller in writing;
(c) The goods supplied by the seller secure the payment of the purchase price of those goods and of any other goods supplied by the seller with priority to the fullest extent permitted by law over all other registered or unregistered Security Interests;
(d) The Buyer will do all the things necessary in the seller’s reasonable opinion, including providing all information the seller requires, to register a Financing Statement or Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security
Interest;
(e) The Buyer will not change its name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register, without first notifying the seller in writing;
(f) The Buyer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement in respect of any Security Interest created pursuant to these terms; and
(g) The Buyer must pay the seller’s costs of any discharge or necessary amendment of any Registration. The seller reserves the right to charge an administration fee for registration, or maintenance of registration, of any Security Interest arising under these terms.

60. If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, the Buyer agrees that Sections 129(3), 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply.
61. To the maximum extent permitted by law, the Buyer contracts out of, and waives any rights the Buyer may have pursuant to, Sections 95 and 96, and if the provisions of Chapter 4 of the PPSA would otherwise apply, Sections 117, 118, 121(4), 123, 129(2) and 130 of the PPSA.
62. Unless otherwise agreed in writing by the seller, the Purchaser waives its right to receive a verification statement in accordance with section 157 of the PPSA.
63. In addition to any other rights under these terms, the seller may exercise any and all remedies set out in the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Buyer, to search for and seize, dispose of or retain those goods in respect to which the seller has a Security Interest. In this regard, the Buyer acknowledges that Sections 126, 128, and 129(1) of the PPSA relating to seizure of goods and disposal of seized goods apply.
64. The Buyer agrees with the seller that neither will disclose any confidential information of the kind referred to in Section 275(1) of the PPSA and that this clause 64 constitutes a confidentiality agreement within the meaning of Section 275(6)(a) of the PPSA
65. The Buyer waives any rights the Buyer may have under Section 275(7)(c) of the PPSA to authorise disclosure of any confidential information that is protected from disclosure under clause 64
66. The Buyer appoints and authorises the seller as the Buyer’s attorney to sign in the Buyer’s name all documents which the seller reasonably considers necessary to enforce or protect the seller’s rights and powers under these terms and to protect, preserve and enforce the seller’s rights under the PPSA.
Access to Premises
67. Where the seller undertakes to install or service goods the Purchaser will give free access to its premises for such purposes and provide all necessary power, water and the like service facilities free of charge to the seller and it is specifically agreed that it will be the responsibility of the Purchaser to provide adequate details of performance requirements, operational conditions of site and limitations.
Payment
68. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
69. The Buyer will pay the full price of each order in instalments unless the client has a current Trade account.
a. Trade account holders are 30 Days EOM, payment being on or before the last
working day of the calendar month following the month of the invoice.
b. Non Trade Account Holders:
i. Where there is no installation or site work:
(i) Deposit will be requested for work to commence due the date specified on invoice
(ii) Balance request due on or before Pickup or delivery of goods
ii. Where there is Installation or Site work:
(i) Deposit will be requested for work to commence due the date specified on invoice
(ii) Progress payments due on or before delivery of goods
(iii) Balance due on date of invoice sent after completion of installation/sitework

c. The due date specified on any invoice or other form as being the date for payment; or
d. failing any notice to the contrary, the date which is fifteen (15) days following the date of any invoice given to the Customer by the Supplier

70. If payment is not made the seller may without demand retake possession of the goods and may without notice sell the goods on such terms and in such manner as it may determine and will be entitled to deduct all expenses  ncurred. For the purpose of recovering possession, and without limiting the generality of the foregoing the Buyer hereby irrevocably authorises and licences the seller and its servants and agents to enter upon any premises where any goods may be stored and to take possession of the goods.
71. All applicable taxes, duties or levies (including GST) on the sale of the goods will be to the Buyer’s account.
72. the seller may, at its option and without prejudice to any of its rights, either suspend further deliveries, require payment in advance or terminate any contract by written notice to the Buyer where the Buyer:

(a) Defaults on any payment due under the agreement;
(b) Being a natural person, commits an act of bankruptcy;
(c) Being a corporation is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Buyer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Buyer’s property and undertaking.
(iii) The entering of a scheme of arrangement (other than for the purpose of restructuring); or
(iv) Any assignment for the benefit of creditors.

Interest
71. Should payment remain outstanding beyond the seller’s payment terms as outlined in clause 68 & 69, the Purchaser agrees to pay interest on all amounts outstanding from the due date of payment at a rate equal to the Seller’s then current overdraft as varied from time to time.
Dishonour of Cheque
72. If any cheque issued by the Purchaser or by any third party in payment for goods supplied, work and labour done and services is dishonoured:
a. the seller may refuse to supply any further goods (whether or not the seller is to make any further deliveries of the goods), until satisfactory payment is received in full; and
b. The seller is entitled to treat the dishonour of the Purchaser’s cheque as a repudiation of this agreement and to elect between terminating this agreement or affirming this agreement, and in each case, claiming and recovering
compensation for loss or damage suffered from the Purchaser

Costs
73. Should any payment remain outstanding beyond the seller’s payment terms as outlined in clause 68 & 69, the Purchaser is liable for all costs including legal costs (on a solicitor/own client basis) and mercantile agents fees (credit collection agency) incurred by the seller in recovering the amount outstanding.
74. Unless otherwise expressly agreed in writing, all payments are to be made in Australian currency to the Head Office of the seller.
75. All prices quoted exclude excise duties, registration fees and like tax imposed by any Government authority upon the goods or services or upon the sale, distribution or delivery thereof. All such charges are the express liability of the Purchaser.
Change of Ownership
76. The Purchaser agrees to notify Seller in writing of any change of ownership of the Purchaser within seven (7) days from the date of such change and indemnifies the seller against any loss or damage incurred by it as a result of the Purchaser’s failure to notify Seller of any change.
Liability
77. The liability of the seller in respect of any claim arising out of this contract will not exceed an amount equivalent to the contract price of the goods and services supplied and will in any event not include liability for any  onsequential, indirect or special damage.
78. Save as aforesaid, all warranties and conditions whether implied by statute or otherwise and in particular any warranty or condition that the goods be supplied will be reasonably fit for any particular purpose for which the Purchaser may require the goods or shall be of merchantable quality are hereby excluded

Advice, Information and Description
79. Any advice, recommendation, information, assistance or service given by the seller in relation to goods sold or manufactured by the seller or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability and the seller does not accept any liability or responsibility for any loss suffered from the Buyer’s
reliance on such advice, recommendation, information, assistance or service.
80. Pamphlets, specifications, drawings and price lists are intended only to give a general description of the products of the Seller and may in some respects differ to the goods supplied due to the changes in the original manufacturer’s specifications.
Competition and Consumer Act 2010 (Cth)
81. The terms in these conditions of sale that exclude or limit the owner’s liability will apply only to the extent permitted by law. Provisions of the Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. These conditions of sale must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the owner is entitled to do so, its liability under those statutory provisions will be limited at its
option to:

(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 good
(d) The payment of the cost of having the goods repaired.

Severability
82. Any provision in these Terms & Conditions of Sale which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of that provision in any other jurisdiction.
Waiver
83. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
Jurisdiction
84. This agreement shall be governed by and construed in accordance with New South Wales law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to oust the jurisdiction of the Federal Court of Australia