1. Definitions
1.1 “TA” means Transalloy Pty Limited (ACN 001 948 590) its successors and assigns or any person acting on behalf of and with the authority of Transalloy Pty Limited.
1.2 “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Commonwealth) and as amended to superseded.
1.3 “Client” means the client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by TA to the Client.
1.4 “Consumer” has the same meaning as in the Australian Consumer Law.
1.5 “Force Majeure” means anything beyond the control of a party or in consequence of which prevents a party from performing its obligations and includes but is not limited to strike, lockdowns, government orders, trade disputes, fire, accidents, supply, import and adverse weather conditions.
1.6 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.7 “Goods” means Goods supplied by TA to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) as described on the invoices, quotation, work authorisation or any other forms as provided by TA to the Client.
1.8 “GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) and as amended or superseded.
1.9 “Services” means all Services supplied by TA to the Client as described on any quotation, work authorisation or other form as provided by TA to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above)
1.10 “Price” means the price payable for the Goods as agreed between TA and the Client in accordance with clause 3 of this contract.

2. Acceptance
2.1 Any instructions received by TA from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by TA will constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients will 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 binding and can only be amended by written agreement between the Client and TA.
2.4 The Client must give TA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any 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 registered address, principal place of business, email address, or telephone number). The Client will be liable for any loss or damage incurred by TA as a result of the Client’s failure to comply with this clause.
2.5 Goods are supplied by TA on the terms and conditions set out herein only. To the extent that there is any inconsistency between these terms and conditions and any term on or related to any order placed or quotation issued, these terms and conditions will prevail.

3. Price And Payment
3.1 At TA’s sole discretion the Price will be either:
(a) as indicated on invoices provided by TA to the Client in respect of Goods supplied; or
(b) TA’s quoted Price (subject to clause 3.2) which will be binding upon TA provided that the Client shall accept TA’s quotation in writing within thirty (30) days.
3.2 TA reserves the right to change the Price in the event of a variation to TA’s quotation. Any change to the price will take effect 7 days after the provision of notice of such change by TA to the Client (whether such notice is provided orally or in writing).
3.3 At TA’s sole discretion a non-refundable deposit may be required.
3.4 Time for payment for the Goods will be of the essence and will be stated on the invoice or statement issued by TA to the Client. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.5 Payment must be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and TA.
3.6 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 invoice given by TA.

4. Delivery and Supply Of Goods
4.1 The supply of the Goods and Services by TA is subject to its ability to secure labour, materials, and other services for the manufacture and supply of the Goods and Services.
4.2 Delivery dates and lead times are an estimate only and TA will not be liable to the Client for any failure to deliver or for delays in the supply of the Goods or Services occasioned by any cause (including but not limited to Force Majeure events) whatsoever whether or not beyond the control of TA. Time is not of the essence with respect to the supply of the Goods or Services.
4.3 Delivery of the Goods is taken to have occurred when:
(a) the Client takes possession of the Goods at TA’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by TA or TA’s nominated carrier). The Client warrants and represents to TA that it will ensure an authorised person is available to take delivery of the Goods; or
(c) 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; or
4.4 Delivery of the Goods by TA to a carrier, either named by the Client or failing such naming to a carrier at the discretion of TA for the purpose of transmission to the Client. At TA’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.5 The failure of TA to deliver shall not entitle either party to treat this contract as repudiated.
4.6 TA shall not be liable for any loss or damage whatsoever due to failure by TA to deliver the Goods (or any part of the Goods) on the estimated delivery date, including, where due to circumstances beyond the control of TA.
4.7 The Client must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Goods will be delivered to ground floor level, kerbside or loading dock only. Where a tailgate truck or other specialised equipment is required, the cost of this will be charged to the Client. The Client authorises TA to deliver goods to the address as nominated by the Client in writing to TA and to leave the goods at such place whether any person is present to accept delivery. TA will not be liable for any loss or damage suffered by the Client after delivery to the nominated address.
4.8 If the Client fails to receive the Goods, and re-delivery is required, the Client will be liable to pay a re-delivery fee.
4.9 TA is not required to verify the authority of any person purporting to have authority to take delivery of the Goods nor is TA required to obtain a signed receipt or acknowledgment from the Client with respect to the delivery of the Goods however, if such signed receipt or acknowledgment is obtained by a person whom TA reasonably believes to be an authorised person of the Client, then such signed receipt or acknowledgment will be deemed the Clients acceptance of the delivery of the Goods.

5. Risk
5.1 All risk for the Goods passes to the Client upon dispatch of the Goods from TA’s premises.

6. Title
6.1 TA will retain all legal and equitable title in the Goods and ownership of the Goods will not pass to the Client until:
(a) the Client has paid TA all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to TA in respect of all contracts between TA and the Client.
6.2 Receipt by TA 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 TA’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until TA shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from TA to the Client TA may give notice in writing to the Client to return the Goods or any of them to TA. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) TA shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to TA then TA or TA’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; and
(e) the Client is only a bailee of the Goods and until such time as TA has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to TA for the Goods, on trust for TA; and
(f) the Client shall not deal with the money of TA in any way which may be adverse to TA; and
(g) 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 TA; and
(h) TA can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
(j) the parties agree that TA will be the owner of the end products.
6.4 The Client will be responsible for TA’s costs and expenses of exercising its rights under clause 6.3(d). Where TA exercises any power to enter the Client’s premises, that entry will not give rise to any action of trespass or similar action on the part of the Client against TA, its employees, servants or agents.
6.5 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, TA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TA is sufficient evidence of TA’s rights to receive the insurance proceeds without the need for any person dealing with TA to make further enquiries. The Client will do all things necessary to ensure TA receives the proceeds of any such insurance payment.

7. Australian Consumer Law
7.1 If the Client is a Consumer, the Goods also come with guarantees that cannot be excluded under Australian Consumer Law and the rights that accompany such law. No other guarantees or warranties apply to the goods unless expressly provided to the Client in writing.
7.2 To the fullest extent permitted by law and without limitation, TA will not be liable under any circumstances for:
(a) any special, indirect or consequential loss or damage, that is, loss or damage beyond a normal measure of loss or damage;
(b) any loss of profits, anticipated or otherwise;
(c) any loss in revenue, gain or benefit;
(d) any loss of business opportunity;
(e) any costs arising from failure of the goods;
(f) any damage, direct or indirect, caused by or arising from the improper storage, installation, operation, and/or maintenance of the goods;
(g) any damage, direct or indirect, to equipment, appliances or data, and the like, arising from the improper, faulty, or incorrect installation, maintenance, and/or operation of the goods;
(h) any structural damage arising from the improper, faulty, or incorrect installation, maintenance and/or operation of the Goods; or
(i) any damage to business goodwill arising from the improper, faulty, or incorrect installation, maintenance and/or operation of the Goods.
7.3 To the fullest extent permitted by law TA’s maximum liability to the Client, for any reason, is limited to the value of those goods sold.
7.4 Unless otherwise set out in the Australian Consumer Law, the Client will at all times indemnify TA from any claims, loss, damage, liabilities, expenses, costs or demands, including any legal fees made by any third party due to or arising out of a breach of this Agreement by the Client arising out of the Client’s negligent act or omission.

8. Warranty / Defects
8.1 Subject to the Australian Consumer Law, the Client shall inspect the Goods on delivery and must, within seven (7) days of delivery notify TA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. Time is of the essence with respect to the notification of any alleged defect as set out in this clause.
8.2 Following notification of an alleged defect, the Client must afford TA an opportunity to inspect the Goods within a reasonable time.. If the Client fails to comply with this Clause 8, the Goods shall be presumed to be free from any defect or damage.
8.3 Goods will not be accepted for return other than in accordance with 7.1 and 8.2 above.
8.4 Subject to the conditions of warranty set out in clause 8.5, TA warrants that if any defect in any workmanship of TA becomes apparent and is reported to TA within twelve (12) months of the date of delivery (time being of the essence) then TA will either (at TA’s sole discretion) replace or remedy the workmanship.
8.5 The conditions applicable to the warranty given by clause 8.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by TA; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
(v) where the Client has installed the Goods and have affixed any third party items or products to the Goods;
(vi) the Client has modified, varied or changed the Goods from that which was provided by TA; or
(vii) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and TA shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without TA’s consent.
(c) in respect of all claims TA shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
8.6 For Goods not manufactured by TA, the warranty shall be the current warranty provided by the manufacturer of the Goods. TA shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

9. Intellectual Property
9.1 Where TA has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in TA, and shall only be used by the Client at TA’s discretion.
9.2 The Client warrants that all designs or instructions to TA will not cause TA to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TA against any action taken by a third party against TA in respect of any such infringement.
9.3 The Client hereby authorises TA to utilise images of the Goods designed or drawn by TA in advertising, marketing, or competition material by TA.

10. Default & Consequences of Default
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at TA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
10.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by TA.
10.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify TA from and against all costs and disbursements incurred by TA in pursuing the debt including legal costs on a solicitor and own client basis and TA’s collection agency costs.
10.4 Without prejudice to any other remedies TA may have, if at any time the Client is in breach of any obligation (including those relating to payment), TA may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. TA will not be liable to the Client for any loss or damage the Client suffers because TA has exercised its rights under this clause.
10.5 Without prejudice to TA’s other remedies at law TA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TA shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to TA becomes overdue, or in TA’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 Clientor any asset of the Client.

11. Security And Charge
11.1 In consideration of any monies owing to TA under this Agreement, TA shall be entitled to charge their interest under this Agreement against any property (whether real or personal) owned at the present time or in the future by the Client and Guarantor.
(a) The Client and/or Guarantor irrevocably and unconditionally consent to TA registering any charge, caveat, mortgage or other security in support of this charge. Such consent includes, but is not limited to, registering a security interest, financing statement, and/or financing change statement over all or any part of the Client’s and/or Guarantor’s personal property at any time, for any time and with any description of the collateral as the TA sees fit.
(b) 13.3 The Client and/or Guarantor appoints as its duly constituted attorney TA’s company secretary from time to time to execute in the Client and/or Guarantor’s name and as the Client and/or Guarantors act and deed any real property mortgage, bill of sale or consent to any caveat TA may choose to lodge against real property that the Client and/or Guarantor may own.
(c) The Client and/or Guarantor must, upon request by TA, execute any security document and to do anything reasonably necessary to enable TA to exercise its rights any otherwise for the Client and/or Guarantor to comply with its obligations under this clause, including, to ensure any security interest is full, effective, enforceable and perfected by TA and for this purpose the Client and/or Guarantor agrees that TA may register any security interest as a purchase money interest on the Personal Property Securities register, if applicable.
(d) Under Section 115 of the Personal Properties Securities Act the parties contract out of the provisions of sections 95, 96, 117, 118, 120, 121(4), 130, 132(3), 132(4), 135, 142, 143 and Division 6 of Part 4.3 of the Personal Property Securities Act.
(e) The Client and/or Guarantor must pay the fee associated with the lodgement of any security by TA pursuant to this clause. TA must sign the relevant document to withdraw any security upon full payment. .

12. Cancellation
12.1 TA may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TA shall repay to the Client any sums paid in respect of the Price (except for any amount that TA is entitled to retain under any other provision of these terms). TA shall not be liable for any loss or damage (whether direct, indirect or consequential) whatsoever arising from such cancellation.
12.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss or damage incurred by TA (including, but not limited to, any loss of profits and/or consequential or indirect loss) up to the time of cancellation.
12.3 Cancellation of orders for Goods made to the Client’s specifications, that may be customised in any way or nonstocklist items will not be accepted, once production has commenced.

13. Limitation of Liability
13.1 TA will not be liable to the Client for any indirect or consequential damages including loss of profits, revenue or data arising out of or in relation to the supply of Goods or Services, even if TA knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute. Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, TA’s liability to the Client in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Good or Services shall be, in aggregate, limited to an amount equal to the amount paid by the Client to TA.
13.2 To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these terms by any statute. The liability of TA for a breach of a condition or warranty implied into these terms by the Australian Consumer Laws is limited at the option of TA:
(a) if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired.
(b) if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.

14. Privacy Act 1988
14.1 The Client and/or the Guarantor/s agree for TA 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 TA.
14.2 The Client and/or the Guarantor/s agree that TA may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
14.3 The Client consents to TA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by TA for the following purposes and for other purposes as shall be agreed between the Client and TA or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by TA, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(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 Goods.
14.5 TA 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.

15. Unpaid TA’s Rights
15.1 Where the Client has left any item with TA for repair, modification, exchange or for TA to perform any other Service in relation to the item and TA has not received or been tendered the whole of the Price, or the payment has been dishonoured, TA shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while TA is in possession of the item;
(c) a right to sell the item.
15.2 The lien of TA shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

16. Trust and Trustees
16.1 Where the Client is a trustee:
(a) the Client agrees to provide TA with a stamped copy of the trust deed (inclusive of all amendments) immediately upon demand by TA; and
(b) the Client warrants to TA that it has full power and authority to enter into this Agreement on behalf of the trust and that it will be bound by these terms and conditions both personally and in its capacity as trustee of the trust.

17. General
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 TA shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TA of these terms and conditions.
17.4 In the event of any breach of this contract by TA the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TA nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 TA may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that TA may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which TA notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any Force Majeure event.
17.9 The failure by TA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TA’s right to subsequently enforce that provision