Ortech Industries Pty Ltd – TERMS AND CONDITIONS FOR SUPPLY OF PRODUCTS
1. Preliminary: These terms and conditions apply to the supply of the goods and materials (Products) described in the attached or accompanying acceptance form or quotation (Quotation) to be supplied and/or delivered by Ortech Industries Pty. Ltd. ABN 29 006 401 234 (Ortech) to the purchaser (Purchaser) named in the Quotation. The parties acknowledge and agree no installation services are required by the Purchaser of Ortech under these terms and conditions.
2. Quotation: The Quotation is an offer by Ortech to supply the Products to the Purchaser in accordance with the Quotation and these terms and conditions. Ortech may at any time withdraw the Quotation (orally or in writing) before it is accepted by the Purchaser. The Quotation is only accepted when the Purchaser:
(a) gives to Ortech written notice of acceptance of the Quotation; or
(b) tells Ortech orally that it accepts the Quotation and Ortech agrees to this form of acceptance.
If the Quotation is not accepted by the Purchaser within 14 days from the date of the Quotation (or such other time as may be described in the Quotation), the quoted pricing may be reviewed and adjusted by Ortech. The Quotation is automatically withdrawn if the Purchaser has not accepted it within 30 days from the date of the Quotation. If the Purchaser tells Ortech orally that it accepts the Quotation and Ortech agrees to this form of acceptance, the Purchaser must as soon as reasonably practicable confirm its acceptance in writing.
If the Purchaser accepts the Quotation before it is withdrawn, a binding agreement (Contract) between Ortech and the Purchaser will arise for the supply of, and payment for, the Products in accordance with the Quotation and these terms and conditions (subject to any pricing adjustment notified at any time to the Purchaser by Ortech if the Quotation had not been accepted within 14 days from the date of the Quotation (or such other time as may be described in the Quotation)).
3. Products: Ortech must supply the Products in accordance with the Contract provided that, if payment for any Product is required to be made in advance, Ortech is not required to start manufacturing the Product or procuring any of the materials for same until the payment under clause 11 has been made.
4. Variations: If
(a) the Purchaser requests any variation to or in respect of the Products; or
(b) any variation is necessary for the completion of the supply of the Products;
Ortech is not obliged to perform the variation or, if the variation is necessary for the completion of the supply of the Products, to perform any further work until the Purchaser and Ortech have agreed on all relevant terms in relation to the performance of, and payment for, the variation.
Except to the extent otherwise agreed between Ortech and the Purchaser, where Ortech proceeds with a variation with the consent of the Purchaser, clause 11 will apply to the variation and the additional cost of the variation, as if the variation were a part of the Work. If Ortech proceeds with a variation with the consent of the Purchaser but an amount for the variation has not been specifically agreed, Ortech is entitled to charge and be paid such additional amount for the variation (and the Work as varied) as Ortech considers reasonable in the circumstances.
5. Title: Title to any Product only passes to the Purchaser when the Product is paid for in full. If the Purchaser fails to pay any amount under the Contract when due, Ortech may retrieve the Product or any other goods or materials that have been supplied, delivered to or otherwise collected by the Purchaser or refuse to either supply, deliver or otherwise make the Product available for collection and the Purchaser authorises Ortech to enter and occupy any site where the Product is stored for that purpose.
6. Risk: Ortech is responsible for the care and security of any Product, and assumes the risk of (and must make good) any loss or destruction of or damage to each such item, until the Product is delivered to the Purchaser or collected by the Purchaser in accordance with the Contract, and after such delivery or collection the Purchaser bears the risk of any loss of or damage to the Product.
7. Purchaser Obligations: Unless specifically stated otherwise in the Quotation, the Purchaser:
(a) must, if it requires any Product for a particular or peculiar purpose or requires the Product to possess special or uniform characteristics, specify that purpose or those characteristics in writing;
(b) must arrange for Ortech’s personnel to have full, free and safe access to any Purchaser’s site (if applicable) where any Product is to be delivered;
(c) must use its best endeavours to obtain all necessary licences, permits and approvals for the use of any Product as soon as reasonably practicable (and the Purchaser must provide a copy of each such permit or approval to Ortech upon request); and
(d) must ensure that the site (other than Ortech’s factory or other premises) where any Product is to be delivered constitutes a safe and healthy workplace and complies with all applicable environmental and occupational health and safety legislation, regulations, codes of practice and standards.
8. Delivery: If the Contract includes delivery of any Product, and without limiting the generality of clause 10:
(a) Ortech will deliver the Product once payment in full has been received to the address or site set out on the Quotation or otherwise notified by the Purchaser to Ortech.
(b) The Purchaser authorises Ortech to deliver the Product at the site or address nominated by the Purchaser and Ortech may enter and occupy any site for that purpose.
(c) Ortech will use its reasonable endeavours to provide the Purchaser with an estimated date and time for delivery within a reasonable time of the Purchaser accepting the Quotation provided that dates and times quoted for delivery are estimates only. If Ortech cannot deliver any Product at a quoted date and time, it will not be responsible for any loss or damage the Purchaser suffers as a result of or in connection with any delay, but Ortech will otherwise seek to deliver the Product as soon as reasonably practicable.
(d) Once Ortech notifies the Purchaser that the Products the subject of a Contract are available for collection or delivery, the Purchaser must either collect or arrange with Ortech to accept delivery of such Products as soon as practicable and in any event within 14 days (unless otherwise agreed), failing which Ortech may charge the Purchaser Ortech’s daily cost of storing such Products until such time as the collection or delivery is made.
(e) If the site or address nominated by the Purchaser for the purpose of delivery of any Products is unattended at the quoted date of delivery during ordinary business hours or any other quoted time for delivery notified to the Purchaser, Ortech may deposit any Product at that address (which will be deemed to be delivered under the Contract) or store, at the Purchaser’s cost and expense, the Product at any place Ortech deems necessary or appropriate in the circumstances. Ortech’s standard re-delivery fee will apply where the Purchaser’s premises were unattended or unable to take delivery of any Product during ordinary business hours.
9. Returns and Defects: To the extent permitted by law and subject to clause 15:
(a) Ortech is under no obligation to accept a return of any Product, but may do so at its sole discretion. If Ortech does accept a return, it may do so subject to conditions.
(b) The Purchaser must arrange to inspect any Product immediately upon the Purchaser’s receipt of the Product. Ortech will be under no obligation to accept a return of any allegedly faulty or defective Product where the fault or defect is not notified in writing to Ortech within 2 days of the Purchaser’s receipt of the Product or, in any case, where the alleged fault or defect was caused by the Purchaser, any work carried out by the Purchaser or any other person (except Ortech or any of its personnel) or fair wear and tear.
(c) For the avoidance of doubt, Ortech will be under no obligation to accept a return of any Product unless the Product is returned undamaged, unused and in its original and undamaged packaging (excluding any fault or defect that was present at the time of the Purchaser’s receipt of the Product).
10. Time Requirements: Ortech must use its reasonable efforts to supply the Product within the time limits set out in the Quotation or, if not specified, within a reasonable time in all the circumstances. Ortech is not liable for any loss or damage suffered by the Purchaser or any other person due to or in connection with any delay in supplying the Product including arising from:
(a) adverse weather;
(b) act of God or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, pandemic or viral outbreak, war, embargo, sabotage, riot or civil disturbance, strike or other labour dispute, expropriation, terrorist act, confiscation or requisitioning of any facility, order or temporary or permanent injunction of any court or tribunal or any other event which is beyond Ortech’s reasonable control;
(c) any variation to or in respect of, or reaching agreement in relation to, the supply of, or payment for, the Products;
(d) any act, omission, neglect or default of the Purchaser or any of its personnel or any other person (except Ortech or its personnel); or
(e) any supply issues in relation to materials procurement or the availability of other resources, such as subcontractors;
and the time to supply the Product will be extended by such period as Ortech reasonably requires having regard to the impact of the relevant event or circumstance on the supply of the Product. Ortech must notify the Purchaser of any expected material delay and extension to the period for supply of the Product as soon as reasonably practicable after the likely extent of the delay becomes apparent to Ortech.
11. Payment: Ortech is entitled to be paid by the Purchaser for the Products agreed to be supplied, as per the amount specified in the Quotation plus the cost of any delivery charges (together the Contract Sum) and on the payment terms set out in the Quotation or any invoice for the Contract Sum provided that:
(a) if the Contract Sum is less than $5,000 (excluding GST), 100% of the Contract Sum must be paid at the time the Purchaser places an order for any Product or accepts the offer embodied in the Quotation and in any case before Ortech starts performing any of the work required to supply the Product;
(b) Ortech may request that the Purchaser pay a deposit for any Product at the time the Purchaser accepts the offer embodied in the Quotation and in any case before Ortech starts work on the Product or procuring any of the materials for same; and
(c) without limiting any other right or remedy Ortech may have under the Contract, where the Purchaser fails to pay any amount due to Ortech under the Contract, Ortech will be entitled to interest at a rate of 1.5% per month accruing daily on the outstanding amount for the time being from the due date of payment.
12. Adjustment to Contract Sum: If the purchase cost of any goods or materials required to be supplied in connection with or incorporated into or otherwise used for any Product or the delivery charges increase by more than 5% after the date of the Quotation and before the relevant item is purchased or manufactured by Ortech, the Contract Sum will be increased by such amount as Ortech reasonably determines to take account of that cost increase, and all references to the Contract Sum in these terms and conditions will be to the Contract Sum as so increased.
13. Application of the PPSA: The parties acknowledge and agree that:
(a) A term used in this clause has the meaning given to it in the Personal Property Securities Act 2009 (Cth) (PPSA), unless the context otherwise requires.
(b) The Purchaser grants to Ortech a security interest under the PPSA in any Products supplied under the Contract.
(c) The Purchaser acknowledges and agrees that Ortech may apply to register a security interest in any Products at any time before or after delivery of any Products. The Purchaser waives its right under section 157 of the PPSA to receive notice of any verification of the registration.
(d) Ortech may apply amounts it receives from the Purchaser towards amounts owing to Ortech in such order as Ortech may choose.
(e) If the Purchaser defaults in the performance of any obligation owed to Ortech under the Contract or any other agreement with Ortech to supply any Products to the Purchaser, Ortech may enforce its security interest in any Products by exercising all or any of its rights under the Contract or the PPSA.
(f) To the maximum extent permitted by law, the following provisions of the PPSA do not apply to the enforcement by Ortech of its security interest in any Products: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
14. GST: All amounts payable to Ortech under the Contract (other than an amount for GST payable to Ortech under this clause 14) have been calculated without regard to GST except where the Quotation otherwise provides. If the whole or any part of any such amount is the consideration for a taxable supply for which Ortech is liable to pay GST, Ortech may charge the Purchaser, and the Purchaser must pay Ortech, concurrently with the payment of that amount, an additional amount equal to the GST payable in respect of the taxable supply calculated on the basis that the value of the taxable supply is the amount payable for the taxable supply excluding any GST. The recovery of consideration for any taxable supply made under the Contract is subject to Ortech issuing to the Purchaser a tax invoice in respect of the supply. Where Ortech is entitled to reimbursement from the Purchaser for any cost incurred by Ortech in respect of any Products, Ortech will only be entitled to recover the cost less the amount of any input tax credit which Ortech is entitled to receive for the acquisition to which the cost relates. In this clause 14, a word or term defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning.
15. Australian Consumer Law: Under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded. Nothing in the Contract shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified.
16. Limitation of Liability: The Purchaser acknowledges and agrees that in accepting the Quotation or otherwise entering into the Contract, the Purchaser does not do so on the basis of, and does not rely on, any representation, warranty, statement or promise except as expressly set out in the Contract, and all conditions, warranties and other terms which would be implied or otherwise incorporated into the Contract as binding on Ortech are excluded to the fullest extent permitted by law.
None of Ortech and its related bodies corporate and the officers, employees, agents, contractors and subcontractors of any of them (Ortech Group) has any liability to the Purchaser or any other person for any consequential or indirect loss arising due to a breach of the Contract or in tort (including negligence) in connection with the provision of, or failure to provide, any Products or otherwise under or in connection with the Contract including, without limitation, loss of profits, bonuses, anticipated income, anticipated cost savings or corruption or destruction of data.
If Ortech supplies or provides any goods or services in connection with the supply of any Products (other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption) in breach of a condition or warranty expressly set out in the Contract or implied by law into the Contract that cannot be lawfully excluded which, in the case of goods, requires the goods to correspond with a description or sample, to be of merchantable quality or to be fit for a purpose or, in the case of services, requires the services to be rendered with due care and skill or to be fit for a purpose, the liability of the Ortech Group to the Purchaser (and any other person) for or in connection with the breach is limited at the option of Ortech to:
(a) in the case of defective goods:
(1) replacement of the goods or supply of equivalent goods;
(2) repair of the goods; or
(3) payment of the cost of replacing the goods or of acquiring equivalent goods or of having the goods repaired; and
(b) in the case of defective services:
(1) supply of the services again; or
(2) payment of the cost of having the services supplied again.
The total liability of the Ortech Group to the Purchaser (and any other person) for a breach of the Contract or in tort (including negligence) in connection with the provision of, or failure to provide, any Products or otherwise under or in connection with the Contract (except for liability arising due to the supply or provision of goods or services in breach of a condition or warranty implied by law into the Contract that cannot be lawfully excluded) is limited to an amount equal to 50% of the Contract Sum.
For the avoidance of doubt, no exclusion of implied terms or disclaimer or limitation of liability contained in this clause 16 will apply to the extent that it is prohibited by law.
17. Termination and/or Suspension by Ortech: If:
(a) the Purchaser fails to pay any amount due to Ortech under the Contract within 7 days from the due date of payment;
(b) the Purchaser commits any other breach of the Contract which in Ortech’s opinion is capable of remedy, and fails to remedy the breach within 30 days from receipt of a written notice of default from Ortech (and the parties agree that failure to perform an obligation by a particular time is a breach capable of remedy);
(c) the Purchaser commits a material breach of the Contract which in Ortech’s opinion is not capable of remedy;
(d) the Purchaser is dissolved, wound up or placed into bankruptcy, administration or liquidation or an order is made by a court that the Purchaser be dissolved, wound up or placed into bankruptcy, administration or liquidation;
(e) the Purchaser is (or states that it is) insolvent or an insolvent under administration (each as defined in the Corporations Act);
(f) execution or other process issued on a judgment, decree or order of a court (whether an Australian Court or not) in favour of a creditor against the Purchaser, or the Purchaser makes a statement from which it may be reasonably deduced that such an event has occurred;
(g) the Purchaser takes any step to obtain protection or is granted protection from its creditors under any applicable legislation; or
(h) the parties cannot agree on terms in relation to the supply of, and payment for, any Products;
Ortech may, in its absolute discretion, elect to:
(i) suspend further manufacture and/or supply of any Products until the matter is remedied to its satisfaction; and/or
(j) terminate the Contract at any time, including following an election to suspend further manufacturing and/or supply of any Products;
by giving to the Purchaser written notice of its election.
Where Ortech elects to terminate, termination will be effective at the date of termination stated in the notice or, if no date is stated, on the date the termination notice is given to the Purchaser.
Where Ortech elects to suspend further work on the supply of any Products, Ortech will not have any liability for any loss or damage suffered by the Purchaser or any other person due to or in connection with any delay in supplying any Products arising from the suspension, and the time to supply the Products will be extended by such period as Ortech reasonably requires having regard to the impact of the suspension on the work required to supply the Products.
18. Termination by Purchaser: If Ortech:
(a) is dissolved, wound up or placed into administration or an order is made by a court that Ortech be dissolved, wound up or placed into administration or liquidation; or
(b) commits a material breach of the Contract and (where the breach is capable of remedy) fails to remedy the breach within 30 days from receipt of a written notice of default from the Purchaser (and the parties agree that failure to perform an obligation by a particular time is a breach capable of remedy),
the Contract may be terminated by the Purchaser giving a written notice of termination to Ortech. The Purchaser acknowledges and agrees that it is not entitled to terminate the Contract except in accordance with this clause 18.
19. Consequences of Termination: Termination of the Contract will not prejudice or otherwise affect any rights and obligations of the parties expressed in the Contract or intended to survive termination of the Contract, nor will it prejudice or otherwise affect any right or remedy 1 party has against another party in respect of any breach of the Contract before termination, but will terminate all other rights and obligations of the parties under the Contract. Where the Contract is terminated for any reason, the Purchaser must pay Ortech for:
(a) the work performed and materials used in relation to any Products up to the date of termination such amount which would have been payable for those Products if the Contract had not been terminated and Ortech had invoiced the Purchaser for payment; and
(b) the cost of goods and materials ordered by Ortech for the manufacture and/or supply of any Products at the date of termination;
and clause 11 will apply so far as it is capable of application (and with all necessary changes) to the determination and payment of the aggregate of these amounts.
20. Survival: This clause 20 and clauses 11 to 15, 19 and 22 to 25 survive termination of the Contract.
21. Further Assurances: Each party must, at its own expense, do everything reasonably necessary to give effect to the Contract and the transactions contemplated by it, including without limitation the execution of documents.
22. Governing Law and Jurisdiction: The Contract is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
23. Severance: If any provision of the Contract is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails to save it the whole provision must be severed. That will not invalidate the remaining provisions of the Contract nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
24. Entire Agreement: The terms of the Contract and the Quotation constitute the entire agreement of the parties in respect of the subject matter of the Contract and the Quotation and supersede, replace and override all other discussions, undertakings, terms and agreements. Without limiting the generality of the foregoing, no additional term set out in the Purchaser’s acceptance of the Quotation will apply or have any effect unless expressly agreed to in writing by Ortech.
25. Interpretation: In these terms and conditions headings and bold typing are included for convenience only and do not affect interpretation and, unless the context otherwise requires:
(a) a reference to a word includes the singular and the plural of the word and vice versa and a reference to a gender includes any gender;
(b) a term which refers to a person includes a company, a partnership, an association, a corporation, a body corporate, a joint venture, a sovereign state, a government or a government department or agency;
(c) no provision of these terms and conditions will be construed adversely to a party solely on the ground that the party was responsible for their preparation;
(d) an agreement, obligation or indemnity on the part of 2 or more persons binds them jointly and severally;
(e) a word or term defined in the Corporations Act 2001 (Cth) has the same meaning in these terms and conditions;
(f) a reference to the personnel of Ortech is a reference to:
(1) Ortech’s employees;
(2) individuals engaged by Ortech as subcontractors; and
(3) individuals employed or engaged by Ortech’s subcontractors;
who perform or assist with any of the Work; and
Last update: 30th May 2022
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