These terms and conditions of supply apply to customers (Customer) of Nexteel Pty Ltd. By placing an order with Nexteel Pty Ltd the Customer is deemed to have accepted these terms and conditions and that these terms and conditions (together with the terms and conditions in any quotation) override any other terms and conditions including any purchase order provided by the Customer.
Goods means metal building materials including roof and wall sheets, gutters, fascias, flashings, ridge caps, rain heads and vents, flooring, fencing, carports, patios and verandahs and all additional or ancillary items for such goods ordered by the Customer from Nexteel Pty Ltd.
1) Quotation and Orders
1.1 Quotations are based on the cost of materials available at the time of quotation and Nexteel Pty Ltd has the right to make any necessary adjustments and correct any errors.
1.2 Any order by the Customer is subject to Nexteel Pty Ltd’s acceptance and Nexteel Pty Ltd may decline an order. Nexteel Pty Ltd reserves the right to supply an order in full or only in part. All orders made by the Customer must be made in a manner approved by Nexteel Pty Ltd and are able to be cancelled only with the agreement of Nexteel Pty Ltd. If Nexteel Pty Ltd agrees to the cancellation of an order, Nexteel Pty Ltd will issue an invoice to the Customer for all costs of any work completed prior to the cancellation.
1.3 Where Nexteel Pty Ltd sends an order confirmation and no response is received in two hours the order is deemed as approved by the customer.
2) Variations
If the Customer varies the order after receipt of an invoice, quotation or order placement, Nexteel Pty Ltd reserves the right to vary the price and present an additional invoice for any extra amount caused by the variation.
3) Payment
3.1 All Cash sale payments are cash BEFORE delivery, unless otherwise agreed in writing.
3.2 Subject to approval and/or minimum monthly purchases, if the Customer wishes to make payment on a credit basis, the Customer must complete an Application for 30 Day Credit Form, including an authority for Nexteel Pty Ltd to seek credit information concerning the Customer. Terms and conditions of credit-based payment by the Customer are subject to change by notice in writing by Nexteel Pty Ltd. If a credit account is approved all accounts are due and payable within (30 days) of the end of the month in which the invoice is issued or as arranged and confirmed in writing by the company.
3.3 The Customer must not off set any amount owed to the Customer by Nexteel Pty Ltd against any amount owed by the Customer to Nexteel Pty Ltd.
3.4 If payment in full is not made in accordance with these terms and conditions, the following will apply:
(a) Interest of 15% per annum, calculated daily, will be charged on all amounts unpaid from the due date until payment is made;
(b) All deliveries that have not been made, including deliveries of Goods ordered separately from the Goods to which the unpaid amount relates, will be suspended until the full amount payable, including GST and interest, is paid in full;
(c) Nexteel Pty Ltd may terminate any contracts in relation to any undelivered Goods, or impose additional conditions of payment before delivery in relation to those undelivered Goods;
(d) Any credit arrangements may be terminated;
(e) Legal proceedings may be instituted for the recovery of the Goods or the unpaid amount and the costs of such recovery; and
(f) Nexteel Pty Ltd may exercise its rights pursuant to clause 7.
3.5 In the event of any dispute of any of the costs or charges by Nexteel Pty Ltd, the Customer must make full payment of the invoice price.
3.6 The Customer charges all of the customers rights, title and interest in any land and personal property held now or in the future by the customer to secure the payment of the Guaranteed debt. The Customer consents to Nexteel Pty Ltd lodging a caveat or caveats to note Nexteel Pty Ltd’s interest under this clause. If a demand is made by Nexteel Pty Ltd the customer agrees to immediately execute a mortgage and/or other instrument of security, In terms satisfactory to Nexteel Pty Ltd to further secure.payment of the Guaranteed debts
4) Delivery and Risk
4.1 Delivery shall be made by Nexteel Pty Ltd at the Customer’s expense to the Customer’s premises or in accordance with the Customer’s instruction by such transport at Nexteel Pty Ltd’s discretion.
4.2 Risk shall pass to the Customer on delivery of the Goods notwithstanding that property shall remain with Nexteel Pty Ltd until those goods are paid for.
4.3 Insurance against all risks whatsoever shall be maintained by the Customer from delivery.
4.4 Additional Costs incurred from excessive delays or extra labour to unload will be charged to the Customer’s account. Lengths 12 metres and over may be subject to additional delivery charges. Maximum lengths for products vary and delivery of such will be determined by Nexteel Pty Ltd.
4.5 Time and dates of delivery are estimates only and subject to the availability of the Goods and Nexteel Pty Ltd shall not be liable to the customer for any delays in delivery.
4.6 Where goods remain at Nexteel Pty Ltd’s premise for more than a calendar month from the customer requested delivery date the goods will be invoiced to the customer and stored at the customers own risk.
4.7 Returns – We will only accept stocked consumables in prime condition within 28 days of purchase. A credit will be issued less $25.00 or 20% charge (whichever is larger). No liability is accepted for a return until the goods are inspected by Nexteel Pty Ltd. Any items made to order cannot be returned.
5) Claims
5.1 Any claim by a Customer for under quantity, delivery of damaged Goods or non-delivery must be made within 7 days of receipt of the Goods by the Customer. The Customer must supply the order number, invoice number and receipt number (if applicable) and all details relating to the claim. If the claim is for damaged goods, the Goods must also be supplied to Nexteel Pty Ltd.
5.2 Liability for any claim against Nexteel Pty Ltd is limited, at Nexteel Pty Ltd’s sole option, to:
(a) resupplying the Goods;
(b) providing payment for the cost of resupplying the Goods; or
(c) repairing the Goods.
6) Intellectual Property Rights
The Customer acknowledges that all intellectual property rights and all copyright in any works, made or created by Nexteel Pty Ltd remains the property of Nexteel Pty Ltd.
7) Property in Goods
7.1 Property in the Goods does not pass from Nexteel Pty Ltd to the Customer until payment in full for the Goods and all monies owing by the Customer to Nexteel Pty Ltd on any account whatsoever has been made in accordance with these terms and conditions.
7.2 The Customer is responsible for the Goods until title passes to the Customer or the Goods are repossessed and the Customer may be liable to Nexteel Pty Ltd for any loss or damage to the Goods. Until payment has been made in full and property passes in accordance with 7.1.
7.3 Bailee and Storage: The Customer shall hold all Goods as bailee and as a fiduciary of Nexteel Pty Ltd and shall securely store same separately from the Customer’s other goods so as to clearly identify the Goods as Nexteel Pty Ltd.
7.4 Disposal of Goods: The Customer is authorised to sell the Goods but shall hold the book debt and the proceeds of sale on trust for Nexteel Pty Ltd and shall account to Nexteel Pty Ltd for any overdue amount from the proceeds thereof, and the Customer, acknowledges that Nexteel Pty Ltd may collect the book debt arising from such sale as Nexteel Pty Ltd remains the beneficial owner of the book debt at all times.
7.5 Repossession of Goods: The Customer’s right to possession of the Goods shall cease if the Customer:
(a) fails to make payments of any outstanding amount due to Nexteel Pty Ltd;
(b) commits an act of bankruptcy or is declared insolvent or, if a company, the Customer does or omits to do anything which entitles the Customer or any person to appoint an external administrator pursuant to any Part of Chapter 5 of the Corporation Law; or
(c) enters into some arrangement or assignment for the benefit of creditors;
7.6 Nexteel Pty Ltd shall be entitled to require the Customer to return all unpaid Goods failing which the Customer grants to Nexteel Pty Ltd an irrevocable licence to enter the Customer’s premises (or the premises of any associated companies or agents where the Goods are stored) to repossess any Goods in accordance with this clause 7 without being liable for trespass or any resulting damage.
7.7 If either Nexteel Pty Ltd reclaims the Goods, or the Goods remain undelivered, Nexteel Pty Ltd may sell the Goods to a third party. The Customer remains liable for any difference between the amount received by Nexteel Pty Ltd the third party and the amount unpaid by the Customer.
8) Personal Properties Securities Act 2009 (‘PPSA’)
8.1 The terms ‘Debtor’, ‘Financing Change Statement’, ‘Financing Statement’, ‘Grantor’, ‘Proceeds’, ‘Secured Party’, ‘Security Agreement’ and ‘Security Interest’ have the meanings given in the PPSA.
8.2 ‘Collateral’ has the meaning given in the PPSA and in particular for the purposes of these terms and conditions, any of the Goods that are not used predominantly for personal, domestic or household purposes to which the Security Interest has attached;
8.3 The Customer acknowledges and agrees that these terms and conditions constitute a Security Agreement that covers the Collateral for the purposes of the PPSA and it is agreed that:
(a) Nexteel Pty Ltd holds (as Secured Party) a Security Interest over all of the present and after acquired Goods supplied by Nexteel Pty Ltd to the Customer and any Proceeds of the sale of those Goods (‘Collateral’);
(b) any purchase by the Customer on credit terms from Nexteel Pty Ltd or retention of title supply pursuant to clause 7 hereof will constitute a purchase money security interest as defined under section 14 of the PPSA (‘PMSI’);
(c) the PMSI will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence;
(d) Nexteel Pty Ltd will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other goods;
(e) any Nexteel Pty Ltd Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all registered or unregistered Security Interests;
(f) until title in the Goods pass to the Customer, it will keep all goods supplied by Nexteel Pty Ltd free and ensure all such goods are kept free of any charge, lien or Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of Nexteel Pty Ltd under these terms and conditions or the PPSA; and
(g) in addition to any other rights under these terms and conditions or otherwise arising, Nexteel Pty Ltd may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for and seize, dispose of or retain those goods in respect to which the Customer has granted a Security Interest to Nexteel Pty Ltd.
8.4 The Customer undertakes to:
(a) sign any further documents and provide such information which Nexteel Pty Ltd may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSA Register;
(b) indemnify and upon demand reimburse Nexteel Pty Ltd for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSA Register or releasing any Security Interests;
(c) not register or permit to be registered a Financing Change Statement in any Collateral without the prior written consent of Nexteel Pty Ltd; and
(d) provide Nexteel Pty Ltd not less than seven 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 PPSA Register to enable Nexteel Pty Ltd to register a Financing Change Statement if required.
8.5 Nexteel Pty Ltd and the Customer agree that sections 95 (notice of removal of accession), 96 (when a person with an interest in the whole may retain an accession) and 125 (obligation to dispose of or retain Collateral) and 132(3)(d) (contents of statement of account after disposal) and 132(4) (statement of account if no disposal) of the PPSA do not apply to the Security Agreement created under these terms and conditions.
8.6 The Customer waives its rights to receive notices under sections 95 (notice of removal of accession), 118 (enforcing Security Interests in accordance with land law decisions), to the extent that it allows a Secured Party to give a notice to the Grantor, 121(4) (enforcement of liquid assets-notice to Grantor), 130 (notice of disposal), to the extent that it requires the Secured Party to give a notice to the Grantor, 132(3)(d) (contents of statement of account after disposal), 132(4) (statement of account if no disposal) and 135 (notice of retention) of the PPSA.
8.7 The Customer waives its rights as a Grantor and/or Debtor under sections 142 (redemption of Collateral) and 143 (reinstatement of Security Agreement) of the PPSA.
8.8 Unless otherwise agreed in writing by Nexteel Pty Ltd, the Customer waives its rights to receive a verification statement in accordance with section 157 of the PPSA.
8.9 The Customer shall unconditionally ratify any actions taken by Nexteel Pty Ltd under this clause 8.
8.10 This clause 8 will survive the termination of these terms and conditions to the extent permitted by law.
9) Lien
Nexteel Pty Ltd is entitled to claim a general Lien on all goods belonging to the Customer for all amounts owing to Nexteel Pty Ltd by the Customer.
10) Warranty and Damages
10.1 Standard Warranty imposed by statute law only applies with all other conditions, warranties and representations on the part of Nexteel Pty Ltd are expressly excluded.
10.2 Damages for the breach of any warranty shall be limited to replacement or repair of the Goods or the cost of the Goods only, at Nexteel Pty Ltd’s discretion, and shall not extend to any consequential damages whatsoever.
10.3 Defective Raw Materials
Nexteel Pty Ltd’s products are manufactured from steel or other materials which have been purchased from external suppliers to appropriate specification and which are expected to display the mechanical and chemical properties embodied in the material specification and accepts no responsibility for any breach of that material specification. Nexteel Pty Ltd will use reasonable endeavours to assist the Customer with any claim against the supplier of that material pursuant to any manufacturer’s warranty provided by or imposed on that supplier.
10.4 Nexteel Pty Ltd is not liable to the Customer or any third party for any loss, damage or cost (including legal costs) except as provided in clause 7.2, whether direct, indirect or consequential, arising from:
(a) the manufacture or delivery of any of the Goods;
(b) any failure to manufacture or deliver any of the Goods;
(c) late completion of the order or late delivery; or
(d) the repossession or sale of any of the Goods and the Customer releases Nexteel Pty Ltd from any such claim.
10.5 The Customer indemnifies Nexteel Pty Ltd and continues to indemnify Nexteel Pty Ltd from and against any claims from third parties in respect of all costs, suits, actions, damages and losses (whether direct or indirect, consequential or not) arising out of any of the following:
(a) the manufacture or delivery of any of the Goods;
(b) any failure to manufacture or deliver any of the Goods;
(c) late completion of the order or late delivery;
(d) the repossession or sale of any of the Goods.
11) General
11.1 Each clause in these terms and conditions must be read down to the extent necessary to be valid. If a clause cannot be read down to that extent, it must be severed.
11.2 Any waiver of any clause of these terms and conditions is only valid if made in writing and signed by the relevant party.
11.3 Nexteel Pty Ltd retains the right to vary these terms and conditions from time to time with 30 days notice to the customer (such notice may be inclusions on existing statements, invoices, quotes, confirmations).
11.4 The governing law of these terms and conditions is the law of South Australia, Australia.
12) Privacy
12.1 In order to obtain a credit account, Nexteel Pty Ltd will collect personal information from the Customer. Nexteel Pty Ltd uses this personal information in accordance with the Privacy Act 1988 (Cth).
12.2 The personal information you have disclosed in your application for credit with Nexteel Pty Ltd will only be disclosed to the credit referees nominated by you and to our credit rating agency. For further information regarding the privacy of your application please contact the Accounts Officer.
13) Disclaimer
13.1 The Customer acknowledges that the information contained in any promotional material, brochures, and specifications or on its website is provided by Nexteel Pty Ltd in good faith and is not to be relied upon as being complete, accurate, or up to date. Such information is subject to change by Nexteel Pty Ltd at any time without notice.
13.2 Subject to any terms implied by law which can not be excluded, Nexteel Pty Ltd accepts no responsibility for any loss, damage, cost or expense (whether direct or indirect) incurred by the Customer as a result of any error, omission or representation in any information contained in such information or on its Website.
13.3 Nexteel Pty Ltd is not responsible for the content or the accuracy of any information of any site accessed from its website (including without limitation sites linked through advertisements or through any search engine). The content of any site accessed from its website is the responsibility of the owner of that site. For the avoidance of doubt, unless otherwise specified, a link from its website to another site should not be construed as an endorsement by Nexteel Pty Ltd of that site or any of its products and services offered.
13.4 Nexteel Pty Ltd does not accept any responsibility or liability for any claims arising out of your use of these links or of the descriptions or information contained on such sites.