1. Definitions
1.1 In these conditions:
Consequential Loss means:
(a) any loss of use, data, profit, bonus, production, income, business, anticipated savings or reputation;
(b) increased project cost;
(c) loss of an economic or financial nature; and
(d) special, indirect, incidental or consequential loss,
whether such loss arises directly or indirectly.
Customer means the customer to whom Olex has contracted to supply Goods;
Defect means any defect of workmanship or materials which is not in accordance with the specification described in the purchase order or other requirements of these conditions;
Drum Price shall mean for each steel drum:
(a) the sum of $1,500 plus GST; or
(b) an amount equal to the replacement cost of an equivalent steel drum, plus freight to the Olex manufacturing site,
whichever is greater.
Goods means the goods which Olex has contracted to supply to the Customer;
Olex means Olex Australia Pty Limited (A.B.N. 61 087 542 863) or any subsidiary or business unit of Olex Australia Pty Limited acting as a supplier of Goods;
G.S.T. means a new tax system (Goods and Services Tax) Act 1999 (Cth).
2. Orders
2.1 A quotation given by Olex to the Customer is not an offer to sell. A contract between Olex and theCustomer only arises in accordance with clause 2.2. 2.2 Each purchase order constitutes an offer by the Customer to acquire the Goods from Olex on these conditions to the exclusion of all other conditions. A contract is made only when Olex accepts a purchase order, which may be by supplying all or part of the Goods ordered. 3. Status
3.1 These conditions replace all previous conditions imposed by Olex and apply to the exclusion of any conditions of purchase used by the Customer even if they form part of the Customer’s purchase order. No variation of these conditions binds either party unless confirmed in writing by Olex. 4. Price
4.1 Unless Olex states otherwise, prices are set out in Olex’s price list, which is subject to alteration without notice. The price payable is the price set as at the date of invoice. 4.2 Prices include Olex’s standard packaging but do not include cutting to Customer length requirements. Olex may charge an additional fee or fees for cut-to-length service, special packaging or freight and handling arrangements. These charges may vary from time to time and can be confirmed at placement of order by calling Olex Customer Service on 1300 CABLES (1300 222 537). 4.3 Quotations are valid for sixty (60) days, unless otherwise expressly stated in the quotation, and are subject to change at any time prior to acceptance of the purchase order by Olex. 4.4 Unless expressly stated otherwise, prices of Goods do not include any sales tax, goods and services tax or similar taxes or other domestic or foreign government duties, charges and taxes. Where applicable, those duties, charges and taxes will be added to the price or will be otherwise payable as a separate charge to be paid by the Customer. 4.5 Despite any other provision of the contract, if adverse changes in market conditions occur during the term of this contract which were not foreseeable at the time the purchase order was accepted by Olex, which changes would result in hardship to Olex if the terms of the contract, including price, were maintained, the Customer agrees to meet on Olex’s request to revise the said terms in a manner that is equitable to both parties and which takes into account the changes in market conditions. Failing agreement on the revised terms within fourteen (14) days of the date of Olex’s request for a meeting, Olex may terminate the contract for convenience in accordance with clause 21. 5. Payment
5.1 All invoices are due and payable in full by the 30th day after the end of the month of invoice. Time is of the essence for payment. 5.2 The Customer must pay interest on any overdue invoice at 2% above the Westpac Banking Corporation reference lending rate. Interest: (a) is calculated daily from the due date until the invoice is paid in full; and
(b) may be capitalised by Olex on the last day of each month.
5.3 The Customer must pay all costs and expenses (including legal costs and mercantile agents fees) which Olex may incur in attempting to recover the overdue amounts. 6. Supply and risk
6.1 Risk in Goods passes to the Customer on the earlier of: (a) collection of the Goods by the Customer;
(b) subject to clause 9.2, delivery of the Goods to the Customer; or
(c) supply of the Goods to a carrier for delivery to the Customer.
6.2 A certificate signed by an officer of Olex confirming collection or delivery, or a delivery docket signed by an employee of the Customer or any other person with the Customer’s ostensible authority, is conclusive evidence of collection or delivery. 6.3 Olex may: (a) withhold supply to the Customer where:
(i) Olex has insufficient Goods to fulfil the order;
(ii) the Goods ordered have been discontinued;
(iii) the Customer is in breach of any contract with Olex; or
(iv) Olex considers it appropriate for any other reason;
(b) supply by instalments; and
(c) require payment for the Goods before delivery, or cash on delivery, and, if Olex exercises any of these rights, the Customer has no right to:
(i) terminate any contract with Olex; or
(ii) claim any loss or damage.
7. Reservation of title
7.1 Title to the Goods does not pass until payment in full in cleared funds of all money owed to Olex for the Goods and all other money owed to Olex by the Customer. Until title to the Goods passes to the Customer, the Customer possesses the Goods as fiduciary bailee and agent for Olex and is only authorised to sell the Goods in the ordinary course of business (which does not include sale for less than cost or on conditions). On taking delivery of the Goods, the Customer must keep the Goods separate from other goods on the Customer’s premises and mark them to show clearly that the Goods belong to Olex.
If the Customer fails to comply with any of these conditions or Olex in its absolute discretion considers that the Customer is in the financial difficulties, Olex:
(a) has the right to immediate possession of the Goods and the Customer irrevocably authorises Olex to enter any premises occupied by the Customer at any time (forcibly if necessary) in the Customer’s name, without notice to any person, and take the Goods;
(b) may retain all money paid on account of the Goods;
(c) may cease delivery of the Goods; and
(d) may recover from the Customer all losses (including loss of profits) without affecting any of its other rights and without being liable in any way to any person.
7.2 Until payment in full for the Goods and of all other amounts owing by the Customer to Olex, if the Customer sells the Goods, the Customer must: (a) deposit all proceeds of sale in a separate and identifiable bank account;
(b) not mix the proceeds with any other money; and
(c) account to Olex for the proceeds; and
(d) Olex may trace all proceeds of sale of the Goods received by the Customer through the relevant account or any other account maintained by the Customer.
If, at the time Olex seeks to recover the Goods, they have been incorporated in any product:
(a) Olex and the Customer will be treated as owners of that product as tenants in common in proportion to their respective contributions; and
(b) if relevant, the Customer will be presumed to have disposed of products not incorporating the Goods ahead of products incorporating the Goods.
7.3 Clauses 7.1 and 7.2 are not intended to create a charge over the Goods or any book debts. To the extent that any part of clauses 7.1 and 7.2 are construed as creating a charge, the offending words are to be treated as deleted. 7.4 Clauses 7.1 and 7.2 do not purport to confer on Olex any contractual rights but only serve as confirmation of Olex’s rights at law and in equity.
8. Liability of Olex and Customer
8.1 To the extent permitted by law all terms and warranties which would otherwise be implied under the Trade Practices Act 1974 (Cth) (Act) or any other applicable statute, the common law, equity, trade, custom, usage or otherwise in relation to the Goods or in connection with the contract are expressly excluded. 8.2 (a) Subject to clause 8.2(b) and (c) and clause 9.4, to the extent permitted by law, Olex’s liability to the Customer: (i) under, or arising out of, or in connection with the contract;
(ii) otherwise at law or in equity including:
(A) by statute;
(B) in tort for negligence or otherwise, including negligent misrepresentation;
(C) in contract; and
(D) on any other basis whatsoever,
shall be limited to one of the following, as determined by Olex:
(iii) replacement of the Goods or the supply of equivalent Goods; or
(iv) payment of the cost of replacing the Goods or of purchasing equivalent Goods.
(b) The limitation in clause 8.2(a) does not apply to claims in respect of personal injury to, illness or death of any persons;
(c) Despite any other provision of the contract, to the extent permitted by law, Olex has no liability to the Customer nor will the Customer be entitled to make any claim against Olex in respect of Consequential Loss incurred or sustained by the Customer:
(i) under, arising out of, or in connection with the contract;
(ii) otherwise at law or in equity including;
(A) by statute;
(B) in tort for negligence or otherwise, including negligent misrepresentation;
(C) in contract; and
(D) on any other basis whatsoever.
(d) This clause 8.2 shall survive termination or expiry of the contract.
8.3 Where Olex is not permitted under the Act or other applicable laws to exclude, restrict or modify its liability for breach of a condition or warranty implied by the Act or other applicable laws, but is permitted to limit its liability for breach of that condition or warranty, Olex’s liability is limited to one of the following as determined by Olex: (a) replacement of the Goods or the supply of equivalent Goods; or
(b) payment of the cost of replacing the Goods or of acquiring equivalent Goods.
8.4 The Customer acknowledges that it has not relied on any representation made by Olex which has not been expressly stated in these conditions. 8.5 The Customer indemnifies Olex against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by Olex: (a) in connection with any act or omission of the Customer including, but not limited to, negligence of the Customer or any unauthorised representation made or warranty given by the Customer in connection with the Goods; or
(b) as a result of any claim made or action brought in connection with the Goods or their use, other than a claim or action brought by the Customer under these conditions or a condition or warranty implied by law which is not excluded by these conditions.
8.6 Olex is not liable for any loss or damage incurred by the Customer or a third party where, after delivery, the Goods are attacked by termites. 9. Delivery and Transport
9.1 Unless the contract specifies the means by which Goods are to be transported, Olex will choose the means of transport. 9.2 Unless otherwise agreed by Olex and the Customer, Olex will deliver the Goods to the Customer’s store where they must be unloaded at the Customer’s cost and risk. 9.3 The date for delivery (if any) specified in the purchase order is indicative only. The Customer acknowledges that it has not relied on any representation made by Olex in relation to the date for delivery. 9.4 Despite any other provision of the contract, Olex shall have no liability to the Customer for delay in delivery of the Goods nor will the Customer be entitled to make any claim against Olex in respect of loss or damage for delay in delivery: (a) under, arising out of, or in connection with this contract;
(b) otherwise at law or in equity including:
(i) by statute to the extent permitted by law;
(ii) in tort for negligence or otherwise, including negligent misrepresentation; or
(iii) on any other basis whatsoever.
9.5 Clause 9.4 shall survive termination or expiry of the contract.
10. Warranty
10.1 Olex warrants the Goods to be free of Defects for a period of twelve (12) months from the date of despatch.
10.2 During the warranty period the Customer may give Olex a notice identifying a Defect in the Goods. The defective Goods shall be preserved intact and made available for inspection by Olex. Within a reasonable period of receipt of the notice Olex may, at its option:
(a) replace the Goods or supply equivalent Goods; or
(b) pay the cost of replacing the Goods or purchasing equivalent Goods.
10.3 On written request from Olex, Goods which have been replaced pursuant to clause 10.2 shall be made available to Olex and shall be the property of Olex.
10.4 No Goods may be returned to Olex without the prior written consent of Olex. If Goods are returned without the prior written consent of Olex, Olex may return those Goods to the Customer at the Customer’s expense and risk.
10.5 Despite any other provision of the contract, to the extent permitted by law Olex has no liability to the Customer nor will the Customer be entitled to make any claim against Olex for loss and damage incurred or sustained by the Customer arising out of or in connection with any Defect, including the cost of rectification of Defects, searching for the cause of any Defect, dismantling, removal, transport, repair, reinstallation, retesting and similar costs:
(a) under, arising out of, or in connection with the contract;
(b) otherwise at law or in equity including:
(i) by statute;
(ii) in tort for negligence or otherwise;
(iii) on any other basis whatsoever.
10.6 Clause 10.5 shall survive termination or expiry of the contract.
10.7 The Customer agrees that no warranty is given under clause 10.1 in respect of Defects caused by:
(a) failure to handle, store, install, maintain or repair the Goods in an appropriate manner after delivery;
(b) failure to use the Goods in the manner for which they were designed;
(c) normal wear and tear; and
(d) alterations to the Goods made without the prior written consent of Olex.
11. Cancellation or variation of order
11.1 The Customer may not: (a) terminate an order; or
(b) reduce the quantity of Goods to be supplied under an order; or
(c) direct Olex to delay the date for delivery of the Goods under an order,
without Olex’s written consent, which consent may be withheld in Olex’s discretion.
11.2 Any request from the Customer to terminate the order or vary the order as described in clause 11.1 shall be in writing and shall not be effective until the date on which Olex gives consent (unless an earlier date is otherwise agreed). 11.3 If an order is terminated or the quantity of the Goods to be supplied is reduced, the Customer shall pay Olex reasonable and proper charges which shall include: (a) a portion of the price reflecting the amount of work completed up to the date on which the termination (or variation) takes effect;
(b) any incurred or committed costs incurred by Olex;
(c) additional expenses incurred by reason of termination (or variation) of Olex’s agreements with its suppliers and subcontractors, including but not limited to, the financing costs related to raw materials in inventory; and
(d) as liquidated damages:
(i) an amount equal to the negative difference, if any, between the value of the metal content of the Goods calculated using the London Metals Exchange rate referred to in the quote or the purchase order as the case may be, and the value of the metal content calculated using the official London Metals Exchange cash rate (i.e. for immediate delivery on the same date) on the date on which the termination or variation becomes effective, or if the quote or the purchase order makes no reference to an applicable rate for the determination of the value of the metal content, an amount equal to the negative difference, if any, between the value of the metal content of the Goods determined using the official London Metals Exchange cash rate prevailing on the effective date of the purchase order and the value of the metal content of the Goods determined using the official London Metals Exchange cash rate prevailing on the date on which the termination or variation becomes effective;
and, if the price in the purchase order is not in US dollars,
(ii) an amount equal to the negative difference, if any, between the value of the metal content of the Goods as determined in 11.3(d)(i) converted from US dollars into the applicable price currency as per the exchange rate prevailing on the effective date of the purchase order and the value of the metal content of the Goods as determined in 11.3(d)(i) above converted from US dollars into the applicable price currency as per the exchange rate prevailing on the date on which the termination or variation becomes effective.
11.4 The entitlement to payment described in clause 11.3 is in addition to and without prejudice to Olex’s other rights.
11.5 If the date for delivery of the Goods is postponed for the Customer’s convenience under clause 11.1 or is extended due to any other cause of delay attributable to the Customer, Olex shall be entitled to payment of the following amounts:
(a) the amount which Olex would have been entitled to claim on delivery;
(b) reasonable storage and handling costs for the Goods (if applicable); and
(c) any additional expenses incurred by reason of the delay in delivery, including but not limited to, the financing costs related to raw materials in inventory or rolling over forward purchase of metal.
11.6 Olex may render:
(a) An invoice under clause 11.5 on the initial date for delivery; and
(b) invoices for storage, handling costs and additional expenses progressively each month as such costs are incurred.
11.7 Where the date for delivery of the Goods is postponed or extended as described in clause 11.5, the warranty period for the Goods shall commence as if delivery had taken place on the initial date for delivery (unless otherwise agreed in writing).
12. Governing law
12.1 The contract between Olex and the Customer for the supply of Goods is governed by the laws of the State or Territory of Australia in which the acceptance of order is issued. The parties accept the non-exclusive jurisdiction of the courts of that State or Territory. 13. Waiver
13.1 A party does not waive a right or power simply because it fails to exercise or delays exercising that right or power. A single exercise of a right or power does not prevent exercising it again or exercising any other right or power. A right or power may only be waived in writing signed by the party to be bound by the waiver. 14. Severability
14.1 Any provision in these conditions which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. Otherwise the provision may be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these conditions in that jurisdiction or the validity or enforceability of that provision in any other jurisdiction. 15. Notices
15.1 A notice to be given or an invoice to be issued by Olex under these conditions may be given or issued by: (a) leaving it at or posting it to the Customer’s address; or
(b) faxing it to the Customer’s fax number, last notified in writing to Olex, and is taken as given;
(c) at the time it is left;
(d) if posted, on the next business day after it is posted, or
(e) if faxed, when transmitted to the Customer, but if transmission is on a day which is not a business day or is after 5.00pm in the place of receipt, it is taken as given at 9.00am on the next business day.
16. Assignment
16.1 The Customer may not assign its rights or obligations under the contract between Olex and the Customer for the supply of Goods without Olex’s prior written consent, which Olex may give or refuse in its sole discretion. 17. Interpretation
17.1 In these conditions, unless the context requires otherwise: (a) if the Customer comprises more than one person, a promise or agreement by the Customer binds each person individually and all of them jointly;
(b) a reference to the Customer includes the Customer’s legal personal representatives and successors; and
(c) a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it.
18. G.S.T. (Goods and Services Tax)
18.1 GST means the goods and services tax that applies in accordance with a New Tax System (Goods and Services) Act 1999 (Cth). 19. Minimum Order Values
Delivery to a Customer’s store
19.1 All orders will be subject to a minimum order value of $1000 for FOT (Free on Transport) deliveries. For orders below this value, Olex will supply subject to the following logistics charges: (a) Metro (within 40km radius of GPO) $40 Freight Metro
(b) Country (between 40-200km of GPO) $80 Freight Country
(c) Remote (greater than 200km of GPO) $100 Freight Remote
Site or direct deliveries
19.2 Requests for delivery direct to a site/address which are not the Customer’s normal trading address will be considered a project and subject to a minimum order value of $3000 for FOT delivery. For orders below this value, the same logistics charges quoted in 20.1 will be applied. 20. Length Tolerance
20.1 Olex warrants that lengths supplied will fall within the range -/+ 2% of the ordered length or the standard pack length, whichever is applicable. The customer is responsible for taking this tolerance into account when ordering. Olex reserves the right to invoice the customer for the exact length supplied and the customer shall be liable to pay the amount invoiced. 21. Termination for Convenience
21.1 Olex may terminate the contract at its convenience by notifying the Customer in writing. 22. Drums
22.1 Unless otherwise agreed in writing:
(a) any steel drum provided by Olex for the purpose of cable supply is the property of Olex; and
(b) the Customer is responsible for returning the steel drum to the Olex manufacturing site within ninety (90) days from the date of delivery of the cable at its own expense. 22.2 If:
(a) the Customer fails to return any steel drum to Olex’s manufacturing site within ninety (90) days from the date of delivery of the cable; or
(b) any steel drum is returned to Olex in a damaged state (fair wear and tear excepting), Olex may issue an invoice for the Drum Price for the relevant steel drum to the Customer and the Customer shall be liable to pay the Drum Price within 14 days of receipt of the invoice.
22.3 If the Customer fails to return the steel drum and pays the Drum Price, ownership of the steel drum shall vest in the Customer on payment. 22.4 If the Customer returns the steel drum in a damaged condition, ownership of the steel drum shall remain with Olex. Olex may proceed to scrap the steel drum or otherwise deal with the steel drum as it sees fit.