Sales Terms

Sales Terms and Conditions

1. General

1.1 This document together with the relevant Sales Confirmation (Delivery Docket and Tax Invoice) embodies the sole terms and conditions of the Contract between Alpak Australia and the Purchaser and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by Alpak Australia.

1.2 These terms and conditions shall without further notice apply to all future transactions between Alpak Australia and the Purchaser in relation to the sale and purchase of goods, whether or not this document is delivered or executed in the course of the transaction.

1.3 To avoid doubt, none of the terms and conditions contained in any document or other instrument supplied by or behalf of the Purchaser (including without limiting the foregoing those included in any purchase order or like document from the Purchaser) shall apply to or form part of the Contract, except and to the extent otherwise agreed in writing by Alpak Australia.

1.4 No variation or abrogation of these terms and conditions shall be effective unless it is evidenced in writing signed on behalf of Alpak Australia.

2. Payment

2.1 Payment shall be made on day of delivery unless credit terms have been agreed by Alpak Australia and Purchaser in writing.

2.2 Time of payment of the price of the goods shall be of the essence of the Contract (stipulated in the Delivery Docket and Tax Invoice) and if the Purchaser fails to pay the price when due Alpak Australia may treat the Contract as repudiated by the Purchaser or may, unless payment in full is made, suspend delivery of the goods the subject of the Contract and any goods the subject of any other Contract with the Purchaser without incurring any liability whatsoever to the Purchaser in respect thereof. In addition, without prejudice to such rights of Alpak Australia, the Purchaser shall (if so required by Alpak Australia) pay interest to Alpak Australia on the outstanding amount of the price of the Contract at the rate of 18% per annum until the price is paid in full.

2.3 The Purchaser shall not be entitled to make any deduction from the price of the goods in respect of any off-set or counter claims.

3. Delivery

3.1 Any time or date named and accepted by Alpak Australia for completion, delivery, despatch, shipment or arrival of the goods or for tender of any documents is an estimate only and does not constitute condition of the Contract or part of the description of the goods and is not of the essence of the Contract.

3.2 Unless otherwise stated in writing Alpak Australia may make partial deliveries or deliveries in any amount it may determine and each partial delivery or delivery by instalments shall be deemed to be a separate Contract and these conditions shall apply to each partial delivery or delivery by instalments.

3.3 The Purchaser shall notify Alpak Australia within 7 days of delivery of any short fall in or loss of damage to the goods delivered. Failure to notify shall, disentitle the Purchaser to any remedy in respect to the shortage, loss or damage.

4. Risk and Title

4.1 Except as otherwise provided herein, the goods supplied by Alpak Australia to the Purchaser shall be at the Purchaser’s sole risk immediately on delivery to the Purchaser.

4.2 The Purchaser and Alpak Australia agree that the provisions of this clause apply notwithstanding any agreement between the parties under which Alpak Australia grants the Purchaser credit.

5. Warranties and Exclusions of Liability

5.1 The Company warrants that the goods when delivered to the Purchaser will comply with any description for the goods contained in the relevant Sales Confirmation (if any). Alpak Australia is not required to supply goods with any specifications or characteristics outside the terms agreed with the Purchaser.

5.2 The Purchaser acknowledges, agrees, represents and warrants that:

5.2.1 As the use of goods is outside the control of Alpak Australia, the Purchaser is satisfied that the goods when supplied in accordance with clause 5.1 will have the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those goods, even if that purpose is made known to Alpak Australia at any time;

5.2.2 the Purchaser has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the goods and any product that is produced from them will be without defect and suitable or fit for any purpose required for them; and

5.2.3 the Purchaser has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by Alpak Australia or anyone on its behalf in respect of the goods, other than those expressly contained in the Contract

5.3 The Purchaser releases and indemnifies Alpak Australia and its directors and employees from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Purchaser and whether at common law,, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss death, injury, illness, cost or damage arising out of any breach by the Purchaser of any warranty provided by it under paragraph 5.2 of this clause.

5.3 Except as expressly set out in the Contract and to the full extent permitted by law:

5.3.1 all conditions, warranties, guarantees, terms and obligations expressed or implied by law or otherwise relating to the Contract or the performance of Alpak Australia’s obligations under the Contract or to any goods or services supplied or to be supplied by Alpak Australia under the Contract are excluded, except for those conditions and warranties as to title in the goods; and

5.3.2 Alpak Australia gives no condition, warranty or guarantee whatsoever as to the suitability, performance or fitness of the goods for their ordinary or special use or purpose, and the description of the goods in any Contract or any other document shall not import any such condition, warranty or guarantee on the part of Alpak Australia.

5.4 Notwithstanding anything to the contrary herein contained, Alpak Australia’s liability in respect of any Claim arising in any way out of the Contract or its performance or from failure to perform the Contract including for breach of any condition, warranty or guarantee contained in the Contract implied into or applying to the Contract and whether liability arises under contract, tort (including negligence), breach of statutory duty or otherwise is limited as follows:

5.4.1 if the liability is due to a failure to comply with any condition, warranty or guarantee in respect of any good or service supplied by Alpak Australia under the Contract, Alpak Australia’s liability is limited as follows:

5.4.1.1 if the failure is in respect of goods, Alpak Australia is limited to replacement of the goods or supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods of acquiring equivalent goods, or payment of the cost of having the goods repaired, as determined by Alpak Australia in its sole discretion; and

5.4.1.2 if the failure is in respect of services, Alpak Australia’s lability is limited to the supply of services again or payment of the cost of having the services supplied again, as determined at Alpak Australia’s in its sole discretion

5.4.2 in respect of all other liability (if any), Alpak Australia’s liability is limited in the aggregate to the amount of $5000.

5.5 To the extent permitted by law, Alpak Australia will have no liability to the Purchaser, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages loss of profit (whether direct or indirect) or loss of business opportunity arising out of or in connection with the Contract or its performance.

6. Return of Goods

6.1 Goods supplied to the Purchaser are not returnable except as provided in clause 5 above.

7. Indemnity

The Purchaser shall keep Alpak Australia indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the manufacture, sale import or use of the goods unless such costs, claim, demand, expense, lability shall be directly or solely attributable to any breach of contract by Alpak Australia.

8. Health and Safety

It is the Purchaser’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and the use of the goods and, where information is supplied to the Purchaser on potential hazards relating to the goods, to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers. Without prejudice to the foregoing, it is also the Purchaser’s responsibility to provide safe facilities for the reception of goods into storage.

9. Goods and Services Tax (GST)

Goods and Services Tax (GST) will be charged on those products that attract GST at the applicable rate.

10. Force Majeure

Alpak Australia shall not be under any liability whatsoever for the consequences of any failure on tis part to perform or delay performing any obligation under the Contract when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure. Without limiting the generality of the foregoing, this includes any liability whatsoever for the delay in completion, delivery, despatch, shipment or arrival of the goods or in the tender of any documents or the like.

‘event of force majeure’ includes any acts of God, war, riots, trikes, lock outs, trade disputes, fires, break downs, mechanical failures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of Alpak Australia.

If there is an event of force majeure, Alpak Australia will notify the Purchaser of the event and the likely impact on its performance under the Contract. If the event affects the capacity of Alpak Australia to complete its material obligations under the Contract in a timely manner, Alpak Australia may by notice to the Purchaser to terminate the Contract without any liability whatsoever on its part arising from such termination.

11. Notices

Any notice to be given to the Purchaser shall be deemed to be given upon being posted, sent via email, or sent via facsimile number of the Purchaser set out in the Contract or to the Purchaser’s last known physical address and email address.

12. Proper Law and Jurisdiction

All Contracts made between Alpak Australia and the Purchaser shall be governed by and construed in accordance with the laws of New South Wales, Australia. The Purchaser agrees to submit to the non-exclusive jurisdiction of the New South Wales Courts and courts of appeal therefrom for all purposes of or in connection with such Contracts.

13. Cost Recovery

Any expenses, costs or disbursements incurred by Alpak Australia in recovering any outstanding monies owing by the Purchaser including debt collection fees, solicitor costs and court fees shall be paid by the Purchaser.