Terms and Conditions
Terms & Conditions of Trade
1.1 “Lager” shall mean Lager Australia Pty Ltd ABN 63 125 439 947.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Lager to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by Lager to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between Lager and the Client subject to clause 4 of this contract.
2.1 Any instructions received by Lager from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Lager shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Client’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of Lager.
2.4 None of Lager’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Lager in writing nor is Lager bound by any such unauthorised statements.
2.5 The Client undertakes to give Lager not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation, tender or any other work commencement forms as provided by Lager to the Client.
4. Price And Payment
4.1 At Lager’s sole discretion the Price shall be either;
(a) The Price shall be as indicated on invoices provided by Lager to the Client in respect of Goods supplied; or
(b) The Price of the Goods shall (subject to clause 4.2) be Lager’s quoted Price which shall be binding upon Lager provided that the Client shall accept in writing Lager’s quotation within fourteen (14) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of Lager’s quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.
4.3 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4 Lager may withhold delivery of the Goods until the Client has paid for them, in which event payment shall be made before the delivery date.
4.5 At Lager’s sole discretion, payment for approved Clients shall be made by instalments in accordance with Lagers delivery/payment schedule.
4.6 At Lager’s sole discretion, payment for approved Clients shall be due on 30th day of each month following the posting of a statement to the Client’s address or address for notices.
4.7 At Lager’s sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice.
4.8 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Lager.
4.9 The Price shall be increased by the amount of any GST and other taxes and duties, which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Lager.
5. Delivery of Goods / Services
5.1 Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Client at Lager’s address.
5.2 Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of Lager for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.
5.3 The costs of carriage and any insurance which the Client reasonably directs Lager to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.
5.4 Where there is no agreement that Lager shall send the Goods to the Client, delivery to a carrier at limited carrier’s risk is deemed to be delivery to the Client.
5.5 Lager may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.6 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.7 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.8 The failure of Lager to deliver shall not entitle either party to treat this contract as repudiated.
5.9 Lager shall not be liable for any loss or damage whatsoever due to failure by Lager to deliver the Goods (or any of them) promptly or at all.
6.1 If Lager retains property in the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, then Lager is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by Lager is sufficient evidence of Lager’s rights to receive the insurance proceeds without the need for any person dealing with Lager to make further enquiries.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Lager and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that Lager shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
8.1 Lager will notify the Client of changes in goods and/or services and where required, obtain Client approval.
8.2 The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify Lager of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Lager an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.3 For defective Goods, which Lager has agreed in writing that the Client is entitled to reject, Lager’s liability is limited to either (at Lager’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Client has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Client’s cost within fourteen (14) days of the delivery date;
(c) Lager will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
8.3 Lager may (in its discretion) accept the Goods for credit but this may incur a handling fee of 35% of the value of the returned Goods plus any freight.
For Goods not manufactured by Lager and sold as either finished goods, and or used as components to perform a repair or service or otherwise used, the warranty shall be the current warranty provided by the manufacturer of the Goods. Lager shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
Goods manufactured or repairs performed by Lager are warranted for 12 months from date of invoice.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Intellectual Property
11.1 Where Lager has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in Lager, and shall only be used by the Client at Lager’s discretion.
11.2 Conversely, in such a situation, where the Client has supplied drawings, Lager in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of Lager).
11.3 Where any designs or specifications have been supplied by the Client for manufacture by or to the order of Lager then the Client warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11.4 The Client warrants that all designs or instructions to Lager will not cause Lager to infringe any patent, registered design or trademark in the execution of the Clients order.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Lager from and against all Lager’s costs and disbursements including on a solicitor and own client basis and in addition all of Lager’s nominees costs of collection.
12.3 Without prejudice to any other remedies Lager may have, if at any time the Client is in breach of any obligation (including those relating to payment), Lager may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Lager will not be liable to the Client for any loss or damage the Client suffers because Lager exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 12.1 hereof.
12.5 In the event that:
(a) any money payable to Lager becomes overdue, or in Lager’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; then without prejudice to Lager’s other remedies at law
(i) Lager shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to Lager shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of Lager and agreed by the Client that property in the Goods shall not pass until:
(a) The Client has paid all amounts owing for the particular Goods, and
(b) The Client has met all other obligations due by the Client to Lager in respect of all contracts between Lager and the Client, and that the Goods shall be kept separate until Lager shall have received payment and all other obligations of the Client are met.
13.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from Lager to the Client Lager may give notice in writing to the Client to return the Goods or any of them to Lager. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.
(b) If the Client fails to return the Goods to Lager then Lager or Lager’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) The Client is only a bailee of the Goods and until such time as Lager has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Lager.
(d) The Client shall not deal with the money of Lager in any way which may be adverse to Lager.
(e) Receipt by Lager of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Lager’s ownership of rights in respect of the Goods shall continue.
(f) The Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Lager.
(g) Lager may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to Lager arising out of these terms and conditions, and Lager may take any lawful steps to require payment of the amounts due and the Price.
(h) Lager can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client.
(i) Until such time the Client has Lager’s authority to convert the goods into other products and if the goods are so converted, the parties agree that Lager will be the owner of the end products.
14. Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which Lager may have howsoever:
(a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Lager or Lager’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that Lager (or Lager’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should Lager elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Lager from and against all Lager’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint Lager or Lager’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as Lager and/or Lager’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of Lager and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to Lager and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in Lager’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Force Majeure
15.1 Lager Australia is not liable for any delay or failure to perform an obligation under this agreement caused by a Force Majeure Event.
15.2 Lager Australia will notify the Buyer as soon as practical of any anticipated delay or failure caused by a Force Majeure Event.
15.3 If a Force Majeure Event occurs, the performance of Lager’s obligations under this agreement is suspended for the period of delay caused by the Force Majeure Event.
15.4 Lager Australia may terminate this agreement by giving the Buyer 14 days notice if it determines that it is not able to deliver the Goods to the Buyer within a reasonable time due to a Force Majeure Event.
15.5 If Lager Australia terminates this Agreement under clause 15.4, all money previously paid under this Agreement for goods or services which have been provided, will be refunded to the Buyer within 60 days after termination.
Lager may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. Lager shall not be liable for any loss or damage whatsoever arising from such cancellation.
17. Privacy Act 1988
17.1 The Client and/or the Guarantor/s agree for Lager to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Lager.
17.2 The Client and/or the Guarantor/s agree that Lager may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Client;
(b) To notify other credit providers of a default by the Client;
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
(d) To assess the credit worthiness of Client and/or Guarantor/s.
17.3 The Client consents to Lager being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that Personal Data provided may be used and retained by Lager for the following purposes and for other purposes as shall be agreed between the Client and Lager or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by Lager, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods.
17.5 Lager may give, information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18. Unpaid Lager’s Rights To Dispose Of Goods
18.1 In the event that:
(a) Lager retains possession or control of the Goods; and
(b) payment of the Price is due to Lager; and
(c) Lager has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) Lager has not received the Price of the Goods, then, whether the property in the Goods has passed to the Client or has remained with Lager, Lager may dispose of the Goods and may claim from the Client the loss to Lager on such disposal.
19.1 Where Lager has not received or been tendered the whole of the price, or the payment has been dishonoured, Lager shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while Lager is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of Lager shall continue despite the commencement of proceedings or judgement for the price having been obtained
20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by Lager are subject to the laws of New South Wales and Lager takes no responsibility for changes in the law which affect the Goods supplied.
20.3 Lager shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Lager of these terms and conditions.
20.4 In the event of any breach of this contract by Lager the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of Lager exceed the Price of the Services.
20.5 The Client shall not set off against the Price amounts due from Lager.
20.6 Lager may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 Lager reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which Lager notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
Lager Australia Quality Clauses
1. Control and Processing Nonconforming Material and Corrective Action
The Client shall implement and maintain a documented quality system that
provides for identification, documentation, segregation and disposition of nonconforming material. Client shall ensure effective corrective action is taken to prevent, minimize, or eliminate non-conformances. Clients Quality Management System shall ensure that nonconforming material is not used for production purposes.
Client shall maintain records of all nonconforming material, dispositions,
assignable causes, corrective actions, and effectiveness of corrective actions for the periods specified in the Purchase Order.
Client shall evaluate each non-conformance for its potential to exist in previously produced or delivered items. If a non-conformance exists, Client shall notify Lager, in writing, within 24 hours for issues impacting safety, and, in writing, within 5 working days for all other issues.
Client shall respond to all Lager Australia requests for corrective action. When requested by Lager, Client shall provide trend data and findings for Lager Australia returned items.
Client shall assess all identified non-conformances, whether or not item(s) was/were returned to seller, and take appropriate actions to ensure causes of non-conformance are corrected. Client shall notify of actions taken to prevent recurrence by forwarding a Corrective & Preventive action report to Lager Australia
Client shall submit to Lager Australia all details (such as specification, noncompliance and date work was performed) on all seller rejections associated with work performed by an approved source.
2. Changes to Client’s Operations
The Client shall inform Lager, in writing, of any adverse change in its quality system status resulting in the loss of 3rd party registrar’s certification status, or any action taken by the Client’s customer, the Government or any other agency.
The Client shall also notify Lager Australia upon any sale, relocation or transfer of Client’s manufacturing operations or upon any change in the quality organization, process or procedures that affect conformity verification of items.
Notification shall be made within 30 days of such changes.
3. Right of Access
The Client shall provide or obtain for Lager customers and regulatory agency personnel, access to any and all facilities, including those facilities of Client’s subcontractors, where work is being performed or is scheduled to be performed.
Lager Australia shall have the right to perform in-process inspections, audits or system surveillance at Client’s and Client’s subcontractor’s facilities as part of verification of conformance to requirements of this purchase order. Denial of any such access may result in inactivation of Client’s approval.
The client shall include the provisions of this facility access requirement in it Purchase Orders with its subcontractors.