Tubular Motors

Terms and Conditions

Terms and Conditions

1. PURCHASE ORDERS

1.1 All Purchase Orders must be made in writing by the Buyer and are subject to acceptance by TUBE in its absolute discretion. 1.2 Any quotation issued by TUBE is an invitation to treat only in respect of which Buyer may issue a Purchase Order. A quotation expires 30 days from the date of quotation unless otherwise agreed in writing by TUBE.

2. AGREEMENT

2.1 Upon acceptance of a Purchase Order by TUBE, an Agreement is formed for the supply of the Goods the subject of the Purchase Order on these Conditions. No terms or conditions on or referred to in any Purchase Order or other document issued by the Buyer will form a part of or vary the Agreement unless expressly agreed to in writing by an authorised representative of TUBE. A failure by TUBE to object to any terms or conditions in or referred to in a Purchase Order shall not constitute acceptance by TUBE of such terms or conditions. 2.2 Any variation to the Agreement must be in writing signed by TUBE.

3. PRICE

3.1 The price payable by the Buyer for the Goods is the net price of the Goods, as quoted, advertised or otherwise indicated in writing by TUBE from time to time (“Price”). Prices and specifications for Goods are subject to change without notice. 3.2 The Price does not include the cost of insurances, shipping expenses, customs duties, Federal, State and local taxes, duties and imposts, and other costs and expenses. These are payable by the Buyer in addition to the Price where applicable. 3.3 Unless GST is expressly included, the Price does not include GST. 3.4 To the extent that any supply is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time. 3.5 Each party agrees to do all things necessary, including providing tax invoices and other documentation, to enable the other party to claim any input tax credit, adjustment or refund in relation to any GST amount paid or payable.

4. DELIVERY

4.1 The Goods shall be delivered FOB, at the point of shipment. 4.2 TUBE will have no liability whatsoever (including liability for negligence) for any loss or damage, consequential or otherwise, if delivery is delayed. 4.3 Delayed delivery will not entitle the Buyer to cancel a Purchase Order. 4.4 Any statement made by TUBE as to the date for delivery of the Goods is an estimate only.

5. ACCEPTANCE OF GOODS

5.1 The Buyer must inspect the Goods upon delivery. 5.2 The Buyer must give TUBE written notice within 14 days of delivery of any matter or thing (including short delivery) that the Buyer alleges is not in accordance with the Agreement. If such notice is not given then to the extent permitted by law the Buyer will be deemed to have accepted the Goods.

6. RETURNS

6.1 TUBE may authorise returns of Goods within 30 days of delivery by issuing the Buyer with a Return Materials Authorisation Number in writing. 6.2 TUBE will only accept returns accompanied by a Return Materials Authorisation Number. 6.3 The Buyer must prepay all costs of returning Goods, including TUBE’s restocking fee, which is 15% of the Price. All Goods returned must be insured, packed in their original packaging and carriage must be prepaid by the Buyer.

7. PAYMENT

7.1 Should an account facility be made available to the Buyer by TUBE, the Buyer must pay for the Goods within 30 days from the date of TUBE’s invoice. In the absence of an account facility being made available, the Buyer must either, at TUBE’s option, make payment when placing the Purchase Order or on demand. 7.2 Payment for the Goods must be made in cleared funds. 7.3 Interest will accrue on a daily basis on any overdue amount under the Agreement at a rate equal to 3 percentage points above Westpac Banking Corporation’s Indicator Lending Rate. 7.4 Any collection costs incurred by TUBE in connection with recovering any outstanding monies, including debt collection agency fees and legal costs (calculated on a solicitor and client basis), shall be reimbursed by the Customer. 7.5 The Buyer is not entitled to defer, offset or withhold payment in whole or in part for any reason unless agreed to by TUBE in writing. 7.6 Time is of the essence in respect of the Buyer’s obligation to make payment for the Goods.

8. RISK AND TITLE

8.1 Risk in the Goods will pass to the Buyer immediately upon delivery. 8.2 Property in the Goods will not pass to the Buyer until all monies owing for all Goods supplied by TUBE to the Buyer and any other money owing by the Buyer to TUBE, have been paid. 8.3 Until the Buyer has paid for all Goods supplied by TUBE to the Buyer in full: (1) the Buyer may only sell the Goods as TUBE’s fiduciary agent for the account of TUBE and the proceeds of such sale (including any proceeds from insurance claims) will be the property of TUBE to be held by the Buyer for and on behalf of TUBE in a separate bank account; (2) the Buyer must store the Goods in a proper manner that clearly identifies the Goods as the property of TUBE; (3) the Buyer must not bail, pledge, mortgage, charge, grant a lien over, lease or assign the Goods, other than in accordance with clause 8.3(1). 8.4 The Buyer irrevocably authorises TUBE at any time to enter any premises upon which Goods are stored to enable TUBE to inspect the Goods and, if the Buyer has breached the Agreement, or suffers an Insolvency Event, to reclaim possession of the Goods. The Buyer indemnifies TUBE against any liability to any person in connection with the entry or reclamation. 8.5 The Buyer acknowledges and agrees that TUBE may recover the price of the Goods by legal action if payment for the Goods is overdue, notwithstanding that property in the Goods has not passed to the Buyer.

9. BUYER’S USE OF THE GOODS

9.1 If the Buyer purchases the Goods for the purposes of resale, the Buyer must transfer to the purchaser of any Goods resold the benefit of TUBE’s warranty against defects contained in clause 11. The Buyer is not otherwise entitled to make any other representation or warranty to any other person on TUBE’s behalf.

10. EXCLUSIONS AND LIMITATIONS OF LIABILITY

10.1 Nothing in these Conditions is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified. 10.2 Subject to clause 11, and to the maximum extent permitted by law, these Conditions exclude all other conditions, warranties, guarantees, liabilities or representations in relation to the Goods. 10.3 Subject to clause 11.1, and to the maximum extent permitted by law, (i) TUBE’s liability, whether arising in contract, tort (including negligence), or otherwise for or in connection with any failure to comply with the warranty in clause 11 or under any statutory or implied condition, warranty or guarantee, is limited (at TUBE’s option) to, and completely discharged by, repairing or replacing the Goods, or paying an amount equal to the cost of the same; and (ii) TUBE excludes all other liability, whether direct, indirect or consequential, arising out or in connection with, the Goods or their use. 10.4 Subject to clause 10.3, to the maximum extent permitted by law, TUBE will not be liable for any indirect or consequential damage, loss, liability, cost or expense of any kind (including any loss of profits)arising out of or in connection with the Agreement or a breach thereof, or these Conditions, whether or not the damage, loss, liability, cost or expense was in the reasonable contemplation of the parties when the Agreement was entered into.

11. WARRANTY FOR DEFECTIVE GOODS

11.1 Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. However where the Buyer or a purchaser is not a “consumer” within the meaning of the Australian Consumer Law, the guarantees referred to in this clause 11.1 do not apply. 11.2 In addition to any rights and remedies that a purchaser of Goods may have under the Australian Consumer Law or any other law, subject to any express warranty or exception in this Agreement, TUBE warrants that the Goods will be free from defects in materials and workmanship under normal and proper use for a period of 5 years from the date of manufacture or, if this date is not ascertainable, 5 years from the date of invoice to the Buyer. 11.3 The warranty period in clause 11.2 will be 3 years if the Goods are motors, controls and accessories used for residential garage doors. 11.4 The Buyer is responsible for all installation, reinstallation and freight costs in connection with any repair or replacement of Goods that do not comply with the warranty in clauses 11.1 and 11.2. 11.5 The warranty in clause 11.2 does not apply: (1) if usage, selection, adaptation, installation, operation or wiring of the Goods or any electrical connections are not in accordance with TUBE’s written selection guides, installation, operating instructions, professional standards and wiring diagrams; (2) if the Goods have been opened, dismantled or returned with clear evidence of abuse, negligent use or other damage; (3) if the Goods have been used to perform functionsother than those specified in TUBE’s catalogues and selection guides or any other functions as notified in writing by TUBE from time to time; (4) if the Goods are used with any inappropriate products, software or other goods that have not been approved in writing by TUBE; (5) to unauthorised maintenance or modifications to the Goods; (6) any damage to the Goods caused by an external source regardless of its nature (including penetration by liquid); (7) to the extent that TUBE specifically notifies the Buyer that it does not apply; or (8) to batteries or other consumables. 11.6 In order to claim under the warranty in clauses 11.1 and 11.2 a purchaser of Goods resold by the Buyer must: (1) Contact TUBE at the address below within the warranty period; or (2) Contact the supplier within the warranty period; and (3) Provide the original proof of purchase. TUBE Tubular Motors, Unit 20, 38-46 South Street, Rydalmere NSW 2116 Ph +61 2 8845 7200

12. PRIVACY

12.1 Where the Goods are supplied to the Buyer on credit the Buyer irrevocably authorises TUBE, its employees and agents to make such enquiries necessary to investigate the creditworthiness of the Buyer with respect to the supply of such credit including without limitation making enquiries of, and exchanging information (including some personal information) with, the Buyer’s trade referees, bankers and credit providers, and with credit reporting agencies (“information sources”). The Buyer authorises such information sources to disclose to TUBE such information in their possession concerning the Buyer that is requested by TUBE. 12.2 TUBE’s privacy policy is available at www.TUBE.com.au.

13. OWNERSHIP OF BUYER

13.1 Buyer must notify TUBE within 14 days of any alteration to its registered particulars. 13.2 Where Goods are supplied to the Buyer on credit, Buyer must notify TUBE in writing within 14 days of any: (1) addition or alteration to the shareholding or directorship of Buyer (if Buyer is a company); (2) addition or alteration to the partnership (if Buyer is a partnership); or (3) intended sale of the Buyer’s business. (“Ownership Changes”) 13.3 If there are any Ownership Changes in the Buyer, TUBE may, in its absolute discretion, withdraw credit facilities for that Buyer.

14. MISCELLANEOUS

14.1 The Agreement does not create or evidence an agency, partnership, joint venture, or the relationship of employer and employee. 14.2 The Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of the Agreement; and supersedes any prior agreement or understanding on anything connected with that subject matter. 14.3 If anything in these Conditions is or becomes unenforceable, illegal or void, in whole or in part (including where it is unenforceable, illegal or void in one jurisdiction but not in another jurisdiction), then it is severed only to the extent that it is unenforceable, illegal or void and the rest of these Conditions remain in force. 14.4 TUBE shall not be liable or responsible for any loss or damage suffered or incurred by the Buyer (or to the extent permitted by law, to any third party) as a result of the non-performance of any of TUBE’s obligations under the Agreement when due to any cause beyond TUBE’s reasonable control, including without limitation an act of God, act or omission of the Buyer, embargo or other governmental act or authority, regulation or request, fire, theft, accidents, strikes, slow-down, war, riot, delays in transportation, or inability to obtain necessary labour, material or manufacturing facilities. 14.5 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. 14.6 TUBE may supply substitutes for materials that are not currently available, provided that the substitutes do not affect the technical soundness of the Goods or their performance. 14.7 Typographical or clerical errors in quotations or Purchase Orders are subject to corrections by TUBE. 14.8 The dimensions and measurements in brochures, materials and other documents published by TUBE are approximate at the date of publication and may be subject to change. Buyers should contact TUBE directly to confirm the current dimensions and measurements.

15. GOVERNING LAW AND JURISDICTION

15.1 The law of New South Wales governs the Agreement. 15.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia.

16. DEFINITIONS

16.1 In these Conditions: (1) “Agreement” means an agreement referred to in clause 2.1; (2) “Buyer” means the purchaser of the Goods; (3) “Conditions” means the terms and conditions in this document; (4) “Goods” means goods sold by TUBE under the Agreement; (5) “GST” means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time; (6) “Insolvency Event” means, where the Buyer is a corporation, the appointment of a receiver, manager, liquidator or administrator, or analogous occurrence, and where the Buyer is a natural person, an act of bankruptcy, incapacity to deal with one’s affairs, or analogous occurrence; (7) “Purchase Order” means the Buyer’s order to purchase Goods; and (8) TUBE” means TUBE Tubular Motors, its successors and assigns.