TERMS AND CONDITIONS OF SALE – TMA

 

  1. DICTIONARY

In these Terms and Conditions:

  1. “TMA” means TMA Group of Companies Limited A.B.N. 66 006 027 087 and any other company listed as a subsidiary of TMA Group of Companies Limited who are the Secured Party.
  2. “Customer” means the person to whom TMA supplies Goods or Services or both who is also the Grantor.
  3. “Goods and Services Warranty Period” means the period of one (1) month after TMA’s supply of the Goods and/or Services to the Customer.
  4. “PPSA” means the Personal Property and Securities Act 2009 (Cth).
  5. “PPS Register” means the Personal Property Securities Register established under Section 147 of the PPSA.
  6. The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Goods”, “Grantor”, “Proceeds”, “Purchase Money Security Interest (“PMSI”)”, “Secured Party”, “Security Agreement”, and “Security Interest” have the meanings defined in the PPSA.
  1. FORMATION OF CONTRACT AND CANCELLATION
    • Any quotation by TMA is not an offer to sell, and an order by the Customer will only bind TMA when it is accepted by TMA in writing. Any such acceptance is subject to these Terms and Conditions. No modified or other Terms and Conditions will be recognised by TMA unless TMA has specifically agreed in writing. Failure by TMA to object to provisions contained in a purchase order or other communications by the Customer is not to be construed as a waiver of these Terms and Conditions or an acceptance of the Customer’s Terms and Conditions.
    • These Terms and Conditions apply to the manufacture or sale of any Goods or supply of any Services by TMA to the Customer except as varied in writing signed by TMA and the Customer. To the extent permitted by law, these Terms and Conditions apply to and prevail over any Terms and Conditions implied by trade, custom, practice or a course of dealing.
    • If the Customer wishes to vary or cancel any order after it has been accepted, the Customer acknowledges that TMA has the discretion to either refuse or accept such variation or cancellation request by the Customer.
  1. GOODS AND SERVICES SUPPLY ARRANGEMENTS

3.1 All orders placed by the Customer must be in writing to TMA and set out the quantity of the Goods and/or type of Services sought and the desired delivery date(s). Upon receipt of an order, TMA will indicate to the Customer the quantities, types and delivery dates it is able to supply and unless the Customer withdraws the order within twenty-four (24) hours of that indication it is taken to have revised the order accordingly and TMA is taken to have accepted it.

3.2 TMA shall not be liable for any delay or failure to meet the estimated delivery dates.

3.3 The price of the Goods and Services is set out in the current price list or as quoted to the Customer by a duly authorised officer of TMA. Prices are in Australian dollars and are inclusive of duties and taxes and exclusive of GST unless otherwise specified.

3.4 Payment by the Customer for any Goods or Services supplied by TMA is due on delivery or, if credit terms have been extended to the Customer, is due on the last business day of the month following the month in which the Goods or Services are invoiced. Terms commence from the invoice date and NOT the date of receipt by the Customer.

3.5 If any correctly rendered invoice is not paid on or before seven (7) days after the due date, or if the Customer is in default of any contract with TMA, or if the Customer enters into liquidation, or if any form of composition with its creditors, has a receiver, receiver and manager or mortgagee in possession appointed or becomes insolvent, or if  the contract is terminated by either party, then, without limiting TMA ’s other rights:

  1. All of the moneys that the Customer owes TMA on any account become immediately due and payable; and
  2. TMA may suspend or cancel any outstanding orders for any other Goods or Services; and
  3. The Customer must pay TMA (in the following order): the costs of enforcing its rights against the Customer including, but not limited to, all legal costs on an indemnity basis and all disbursements (on a solicitor/own client basis); then bank or similar fees that result from default in, dishonour or re-presentation of, or delay in, any payment by the Customer; then interest on the overdue amounts, calculated on daily balances commencing from the due date for payment, at the rate of 1.5% above the overdraft rate applicable to amounts in excess of $100,000 as charged by Australia and New Zealand Banking Group Limited; then the outstanding price due for all or part of any services supplied by TMA to the Customer; then the outstanding price due for all or part of any Goods supplied by TMA to the Customer; and
  4. The Customer acknowledges that it has no right to deduct or set off any amount, disputed or otherwise, against moneys due to TMA; and
  5. As security for the moneys payable, the Customer agrees to charge all its equitable interest in its freehold and leasehold property and agrees to deliver to TMA, within seven (7) days of demand, a properly executed Memorandum of Mortgage in a form approved by TMA which includes a covenant providing that interest will be charged on such moneys in accordance with these Terms and Conditions and is otherwise in accordance with Memorandum Q860000 registered at the office of the Registrar General in Sydney.
  6. MAXIMUM FREE STORAGE PERIOD. TMA has agreed to manufacture and supply product/s ordered by you. This includes orders made at the time of signing this document and any future orders you may make. TMA may warehouse this product, free of any storage charges, for a maximum initial period (“FREE STORAGE PERIOD”) of up to 6 months. Any product/s not purchased or still in the possession of TMA at the end of the Free Storage Period will become PAYABLE IN FULL immediately and will be invoiced to you, including any freight and/or delivery charges. TMA may also charge a storage fee of $10.00 per week, per pallet (or part thereof) after the Free Storage Period expires. TMA reserves the right to bring forward the end of the Free Storage Period if there is any significant adverse change to your credit status or risk profile. This includes information provided by our credit reporting agency, and/or in our absolute discretion we decide that there has been poor conduct of your trading account with us.
  1. DELIVERY
    • Except as otherwise specified, prices for Goods include standard packaging and delivery to the Customer at TMA’s premises. TMA is entitled to invoice the Customer for alternative packaging or delivery arrangements, including any courier costs. If TMA agrees to arrange delivery elsewhere, TMA will deliver the Goods ordered by the Customer at the Customer’s cost.
    • The Customer acknowledges that its acceptance of delivery of the Goods is an act done by or with its authority with the intention of accepting the Security Agreement in respect of those Goods.
    • If all or part of an order of any Goods is not collected or accepted by the Customer for any reason, TMA may place such Goods in storage, including at or on TMA premises. The Customer must pay TMA all expenses incurred in relation to storing any Goods not collected or accepted and in any case an amount not less than the commercial value of comparable storage.
  1. RETENTION OF TITLE
  • Title to the goods delivered by TMA passes only to the customer upon payment in full by the customer for all of the goods (provided that in the case of tender of a cheque, payment is not deemed to be made until the cheque has been honoured).
  • Notwithstanding that title remains with TMA until payment in full is received, the risk in the goods passes to the customer upon delivery to the carrier, or collection of the goods, from TMA’s premises. The customer must insure the goods from the date the goods leave TMA’s premises to the date title in the goods passes to the customer.
  • Until title of goods passes to the customer the following conditions apply:
  1. The customer must hold the goods solely as fiduciary bailee for TMA.
  2. The customer must store the goods separately from its own goods and those of other persons and in such manner as will clearly identify the goods as the property of TMA.
  3. The customer is hereby authorised to sell the goods but only as agents and fiduciary bailee for TMA and the entire proceeds of the sale or any other proceeds arising from the goods or an insurance claim regarding the goods must be held in a separate account in trust for TMA.
  4. In the event that the customer fails to pay for the goods within 90 days after the due date or the customer enters into liquidation, or any form of composition with its creditors, has a receiver, receiver and manager or mortgagee in possession appointed or becomes insolvent or the supply contract is terminated, then any credit terms which the customer has with TMA will cease immediately and all amounts owing by the customer to TMA will become immediately due and payable and TMA without prejudice to its other rights in contract or general law may repossess the goods and the customer hereby licenses TMA, its servants and agents to enter the customer’s  premises at any time without notice in order to search for, inspect and/or repossess the goods. TMA has the right to sell or dispose of such goods removed or otherwise in its sole discretion and is not responsible for any loss occasioned thereby.

5.4    In the event that the customer is placed in or under any form of external administration including if the customer or its property is subject to the appointment of an administrator or a controller within the meaning of section 9 of the Corporations Act 2001, the customer’s right to sell the goods will be immediately terminated.

  1. THE PPSA

6.1 The contract, which includes these Terms and Conditions, between TMA and the Customer is a Security Agreement for the purposes of the PPSA and if the Goods are supplied by TMA to the Customer without payment by way of cleared funds being made at the time of supply:

  1. TMA holds a Security Interest in Goods supplied by it to the Customer (“Collateral”) and any Proceeds thereupon arising in accordance with and subject to the PPSA;
  2. That Security Interest will be a PMSI;
  3. TMA’s Security Interest in the Goods continues notwithstanding the Goods may be processed, commingled or become an accession with other goods;
  4. TMA’s Security Interest will be a continuing and subsisting Security Interest in the Collateral with priority to the fullest extent permitted by law; and
  5. In addition to any other rights under these terms and conditions or otherwise arising, TMA may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry by it, its servants or agents into any building or premises owned, occupied or used by the Customer, to search for and seize, repossess, dispose of or retain those Goods.

6.2 The Customer undertakes to:

  1. Sign any further documents and provide such information which TMA may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
  2. Indemnify and upon demand reimburse TMA for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
  3. Provide TMA not less than seven (7) days prior written notice of any proposed change in the Customer ’s name, address, contact numbers, business practice or such other change in the Customer’s details registered on the PPS Register to enable TMA to register a Financing Change Statement if required.
  4. TMA and the Customer contract out of Sections 96, 125 and 132(3)(d) and 132(4) of the PPSA.
  5. The Customer hereby waives its rights to receive notices under Sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  6. The Customer waives its rights as a Grantor and/or a Debtor under Sections 142 and 143 of the PPSA.
  7. The Customer waives its right to receive a verification statement under Section 157 of the PPSA.
  8. The rights of TMA expressed in this Clause 7 will survive the termination of the contract, howsoever that shall occur, to the extent permitted by law.
  1. RISK IN GOODS AND INSURANCE

7.1 Notwithstanding that title in the Goods may remain with TMA until cleared funds as payment in full is received, risk in any such Goods and liability for any loss or damage passes to the Customer immediately on their collection by or on behalf of the Customer.

7.2 Any claim for damage or short delivery must be made in writing and addressed to TMA and received by TMA within seven (7) working days of delivery or collection of the Goods by or on behalf of the Customer.

7.3 It is the responsibility of the Customer to effect insurance from the time the Goods are collected to the time title passes to the Customer in respect of loss or damage to such Goods for their full replacement value against all risks prudently insured against including, without limitation, loss or damage whilst the Goods are in transit.

 

  1. GOODS AND SERVICES WARRANTY PERIOD, LIMITATIONS AND EXCLUSIONS

8.1 TMA agrees to make good any defects in material or workmanship that arise under normal use and service during the Goods Warranty Period provided TMA is notified thereof in writing within seven (7) days after expiry of the Goods and Services Warranty Period. TMA’s liability under this clause is limited to replacing the Goods or re-supplying the services or supplying equivalent Goods or services, at its option. TMA may vary the Goods and Services Warranty Period in respect of Goods and services the subject of any future order by giving the Customer 30 days notice in writing.

8.2  TMA does not seek to exclude TMA’s legal liability (if any) for any death or personal injury, or for any reduction in the value of physical property, which is caused by TMA’s  negligence other than for consequential loss or to the extent caused or contributed to by the Customer or any third party or their respective employees, contractors or agents,  which TMA does exclude.

8.3 Certain legislation local to either TMA or the Customer may imply conditions or warranties which by law cannot be modified, limited or excluded. TMA’s liability (if any) for a breach of any such implied condition or warranty is limited at TMA ’s option to any one or more of the replacement or repair of the Goods or payment of the cost of having them  replaced or repaired, re-supply  of the services or payment of the cost of having them re-supplied  or supply of equivalent Goods or services.

8.4 Subject to Clauses 8.1, 8.2 and 8.3 and to the extent permitted by law, TMA is not liable for any cost, expense, loss or damage (including consequential loss) that is

directly or indirectly incurred or suffered by the Customer howsoever arising out of the supply of the Goods or Services.

 

  1. WARRANTIES

9.1 The Customer warrants that:

  1. It has not relied on any representation made or implied by TMA or arising out of or implied by TMA’s conduct, nor upon any description, illustration or specification contained in any document produced by TMA, including any catalogue or publicity material, unless made in writing for the purposes of a particular order and signed by a duly authorised officer of TMA.
  2. Because the Customer has had and taken the opportunity to independently check and form its own view about the significance, and the accuracy or otherwise, of the representation, to the extent that TMA has made or implied any representation that is not expressly stated in these conditions, it does not rely on that representation.
  3. The Goods and services supplied by TMA will be used strictly for a business purpose.
  1. GOODS & SERVICES TAX

10.1 TMA may add to each of the amounts payable by Customer for relevant taxable supplies, an amount equivalent to the GST liability of TMA in respect of the taxable supply as reasonably calculated by TMA and the Customer must pay TMA the higher amounts which result.  TMA will issue a tax invoice or tax invoices as required.

  1. PRINTING VARIATIONS

11.1 Customer acknowledges that

  1. a) Colour variation may occur between proofs and completed product as a result of the use of different paper, inks, equipment or other factors used in the printing process; and that
  2. b) Minor loss of register may occur between colour proofs and completed Goods due to production press operations. The Customer acknowledges that TMA has no liability in respect of Clauses 11.1a. and 11.1b.
  3. c) TMA shall make every reasonable effort to deliver the quantity specified. However, all quotations are conditional upon a margin of 10% in single colour work and 10% in multicolour work being supplied over or under. Unless otherwise agreed in writing by TMA this margin shall be charged or deducted respectively on a pro rata basis.
  1. UNEXPECTED DELAY

12.1 This clause applies if something happens which is beyond TMA’s reasonable control which makes it impossible, more difficult or more expensive for TMA to perform its obligations in its usual way. In those cases, TMA may wait until it is again possible for TMA to perform its obligations in its usual way without additional difficulty or expense and TMA is not liable for any delay which results. Without limiting those general words, that applies where TMA has problems due to accidents, strikes, transport difficulties or stock shortages.

  1. ASSIGNMENT AND SUBCONTRACTORS

13.1 TMA may, and the Customer must not, assign any part or the whole of any right or benefit of any contract TMA has with the Contractor. TMA may choose to use one or more subcontractors to fulfil TMA’s obligations under any contract we have with the Customer.

  1. MISCELLANEOUS

14.1 These Terms and Conditions and every related contract is governed by the laws of the State of New South Wales, and the parties hereby submit to the non-exclusive jurisdiction of the Courts operating in New South Wales in connection thereto.

14.2 References to statutes, regulations, ordinances and by laws include all statutes, regulations, ordinances and by laws amending, consolidating or replacing them.

14.3 If any of these Terms or Conditions are void or unenforceable such provisions must be read down as far as is required by law to render it enforceable or, if unable to be read down, must be severed and the balance will remain in full force and effect.