T One Two Three Pty Ltd ACN 151 268 003 (‘2Site’) T/A 2Site Construction Supplies

Terms and Conditions

1 SUPPLY

1.1  You agree that on 2Site counter-signing your Application, these terms and conditions, as amended from time to time (Ts&Cs) will govern all dealings between You and 2Site (including any quotations or your orders) and will be incorporated into all supply agreements between them. 2Site will supply all Goods on the following Ts&Cs. 

1.2  2Site does not represent that it will provide any Goods unless they are included in its quotation. All quotations provided will expire 30 days after their date of provision. All prices quoted by 2Site are based on the taxes and charges applicable at the time of the quotation and are dependent on availability from the suppliers. In the event that certain Goods are not readily available, 2Site has the right to vary the price and offer substitutes to the requested Goods. Should these vary from the date of the quotation to the date of the invoice, you will also be liable to 2Site for the difference.

1.3  As conditions of acceptance you as a prospective customer, 2Site may require at least three (3) suitable trade references.

1.4  You will ensure when placing orders that you provide sufficient information to enable 2Site to complete the order.

 

2 PRICES AND DELIVERY

2.1  All Goods are sold at their prices determined at the date of 2Site’s invoice.

2.2  Prior to payment being made by you for the Goods, 2Site may, at its discretion:

(a) decline to provide the requested Goods; or

(b) postpone or cancel the delivery of the Goods.

2.3  2Site will deliver the Goods to the delivery address in your order (or as specified in your credit application if different). You are responsible to ensure that the delivery address specified is correct. Shipments that are undeliverable due to incorrect or incomplete addresses will be subject to re-delivery costs payable by you.

2.4  You are required to give 2Site reasonable access to the delivery address in order to deliver the Goods.

2.5  2Site will use reasonable endeavours to supply Goods in accordance with your order, and where agreed with you, may arrange for you to collect the Goods directly from 2Site’s premises or as otherwise agreed with 2Site.

2.6  You indemnify and hold 2Site harmless in respect of any Loss if supply of the Goods is early or delayed for any reason beyond the control of 2Site or for a reason that you are, or should reasonably have been, aware of.

2.7  Where you specifically request 2Site to take extra measures outside the usual requirements in these Ts&Cs, such as express couriering or delivering bulky items and incurring freight costs, 2Site has the right to pass on and charge for any out-of-pocket costs incurred in delivering the Goods.

 

3 CANCELLATION AND FORCE MAJEURE

3.1  If you cancel an order prior to delivery, and 2Site incurs re-stocking costs, you must pay those costs to 2Site as a liquidated and ascertained debt the cost (if any) to 2Site.

3.2  2Site has full power to cancel the contract and rescind its obligations under these Ts&Cs, or cancel such delivery of the Goods at any time prior to the delivery of the Goods, by giving reasonable notice to you either verbally or in writing.

3.3  Where 2Site has cancelled a contract to which these Ts&Cs apply, 2Site must repay to you any money paid by you for the Goods, but 2Site will not be liable for any loss or damages caused from the cancellation.

 3.4  2Site is not responsible for any failure to perform any obligation under these Ts&Cs due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of 2Site (each a Force Majeure Event).

3.5  If by reason of a Force Majeure Event, the delay or non-performance of 2Site’s obligations continues for more than 90 consecutive days, 2Site may refund any monies paid for Goods that have not been delivered and cancel any order.

 

4 PAYMENT

4.1  2Site will render invoices to you for all Goods delivered and 2Site will issue invoices upon delivery of the Goods.

4.2  You must pay 2Site within 30 days after the end of the month in which the Goods are delivered to you, unless otherwise agreed in writing by 2Site and you.

4.3  Despite anything else, 2Site may at its sole discretion require cash on delivery of Goods, or may issue seven (7) day accounts for Goods delivered.

4.4  If you fail to pay for any Goods, 2Site may refuse to supply further Goods until all outstanding payments are received in full by 2Site.

4.5  2Site may at its sole discretion allocate and set a credit limit for you and if You exceed that credit limit, 2Site may, at its sole discretion, require You to reduce or satisfy in full the credit limit before 2Site supplies any further Goods to you.

4.6  2Site may revoke or vary your credit limit at any time and without notice to you. On 2Site revoking a credit limit, all amounts owing by you to 2Site are immediately due and payable.

4.7  You must pay 2Site’s invoices in full without set-off, deduction or counterclaim and You acknowledge that this clause may be produced in bar of any proceeding for set-off, deduction or counterclaim.

4.8  If you fail to pay the full amount owing on the relevant due date, interest on the outstanding amount may be charged and compounded monthly at 2.5% per calendar month.

4.9  You must pay any costs incurred by 2Site in respect of obtaining payment of amounts owing by you.

 

5 RETURNS

5.1  You are deemed to have accepted the Goods (including any claimed short delivery, damage or defect) unless within 7 Business Days (time being of the essence) of delivery, you provide to 2Site by email notice of the deficiency, damage or defect, accompanied by relevant high- resolution photographs.

5.2  2Site reserves the right to, and you will procure access to, your premises to inspect the Goods and makes its own assessment of any notice under clause 5.1. Despite clause 5.1, if you do not procure access for 2Site when reasonably required, you will be deemed to have accepted the Goods.

5.3  2Site may accept the return of any Goods supplied to you, as long as they are returned within a reasonable timeframe. Returned Goods must be in resalable condition, accompanied by the original invoice and shipped by the carrier nominated by 2Site (at the cost and expense of you) subject to their condition when delivered to you. Subject to clause 5.4, 2Site may raise a handling charge of up to 20% of the sale price of the Goods to cover its reasonable administration and restocking costs where Goods are returned.

5.4  When Goods are returned under clause 5.1 and the notice is not disputed under clause 5.2, 2Site will: (a) issue a credit note to you for the full value of the relevant invoice; and
(b) may not raise a handling charge.

 

6 WARRANTY AND INDEMNITY

6.1  To the maximum extent permitted by law, these Ts&Cs exclude all implied conditions and warranties and any liability to you or any other person for any loss or damage consequential or otherwise (including any loss of profits arising out of or in connection with the provision of the Goods) except where that exclusion would contravene any laws (including the Competition and Consumer Act 2010 (Cth) (ACL)) or cause this condition to be void.

6.2  2Site’s goods come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.

6.3  You assume all risks and liability in respect of any use of the Goods, whether used along or in conjunction with other Goods.

 

7 RISK, TITLE AND INDEMNITY

7.1  All risk in any Goods supplied to you will, unless otherwise expressly agreed in writing or by law, pass to you upon delivery, including loading the Goods onto your nominated carrier (if that is your preferred delivery).

7.2  Property and ownership, both legal and equitable, in all Goods supplied by 2Site will not pass to you and will remain with 2Site until You have paid for the Goods in full and paid all and any other amounts owing by you to 2Site, notwithstanding delivery of the Goods to you.

7.3  Where you specifically request 2Site to leave the Goods at nominated premises for collection or to deliver the Goods to an unattended location, you will bear the full risk of that request.

7.4  You acknowledge and agree that until all amounts owing by you to 2Site have been paid in full:

(a)  you grant 2Site a security interest in all Goods supplied by 2Site to you, and any proceeds thereof, as security for all monies payable and obligations to be performed by you to 2Site;

(b)  that security interest extends to all proceeds and any accession to, or of, the Goods;

(c)  until the Goods are sold or you otherwise relinquish control of the Goods, you agree to keep them separately stored and readily identifiable; and

(d)  you will not grant or seek to grant any security interest or other analogous right in the Goods adverse to any interest of 2Site; and

7.5  2Site will not be liable for and you will indemnify and keep 2Site indemnified and held harmless from and against any Loss expended or suffered by 2Site, whether or not contemplated by the parties, in recovering any Goods (including legal costs on a full indemnity basis).

 

8 SECURITY

8.1  You acknowledge and agree that 2Site may register its security interest at any time and you will:
(a) provide all information and execute all documents necessary to enable 2Site to do so; and
(b) promptlyinform2Siteinwritingofanychangeofyournameorofanyotherchangerelevanttoanyregistrationof2Site’ssecurityinterest.

8.2  You will provide 2Site with whatever information and support it requires to obtain and retain that priority and you waive your right to receive any notice under the PPSA (including notice of a verification statement after registration or variation of a registration) or restriction on enforcement of any security unless a requirement for notice cannot be excluded under the PPSA.

8.3  2Site may apply any money received from you first to satisfy any portion of the debt due to 2Site that arises in respect of Goods no longer held by you, second to satisfy any portion of debt that is unsecured, third to satisfy any portion of debt that is secured but not by a PMSI and then to all other debts due and payable to 2Site in the order that 2Site determines.

8.4  If any Goods are damaged or destroyed following delivery, but prior to ownership passing to you, 2Site is entitled to recover all insurance proceeds payable for those Goods. You authorise your insurer to accept this document as sufficient evidence of 2Site’s rights to receive the insurance proceeds.

8.6  The guarantee and indemnity referred to in clause 8.5 continues during the currency of these Ts&Cs and until all obligations under these Ts&Cs have been satisfied to the discretion of 2Site. The Guarantor’s liability will not be affected by 2Site giving time or any other concession indulgence or compromise to you for the performance of its obligations.

8.7  This guarantee and indemnity may be enforced against the Guarantor without 2Site first taking action against you or pursuing any other available recourse and may be enforced despite any neglect or omission to enforce any rights against you or if any of the agreements between 2Site and you are wholly or partially unenforceable or if you go into liquidation.

8.8  You and any Guarantor owner of real property mortgage all of their interest in that property in favour of 2Site to secure all amounts arising and performance of all obligations to 2Site under these Ts&Cs.

8.9  You and each Guarantor acknowledge and agree that 2Site may lodge a caveat over any of your real property, which will be withdrawn once all payments and obligations payable to 2Site have been met.

 

9 ENFORCEMENT

9.1  You grant 2Site an irrevocable and exclusive licence to enter your premises or any location where the Goods are located. Upon the occurrence of a Default Event, 2Site may (without prejudice to any other rights and remedies) recover, detach, remove and/or sell the Goods. 2Site has no obligation to make good any damage caused by that action.

9.2  2Site and You agree that clauses 7 to 9 apply notwithstanding any agreement between the parties unless expressly stated.

 

10 GENERAL
10.1 Interpretation

(a) In this Application, reference to:

(i)  the singular includes the plural, reference to the masculine includes the feminine and neuter, and words importing persons will apply to corporations;

(ii)  a party includes its personal representatives, successors, permitted assigns, executors, trustees and where applicable liquidators, receivers or administrators;

(iii)  a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation;

(iv) “include” and similar language will not be construed as a word of limitation; and

(v) writing or written includes faxes and emails.

(b) Any instructions provided by you to 2Site after receiving these Ts&Cs will constitute acceptance of these Ts&Cs.

10.2  Jurisdiction

2Site and you acknowledge and agree that your agreement under any document that incorporates these Ts&Cs, including your credit application will be governed by and construed in accordance with the laws of the State in which the Goods are supplied and the parties submit to the non-exclusive jurisdiction of the Courts of Western Australia.

10.3  Credit Reports, notice and consent

You acknowledge and agree that 2Site and any related bodies corporate may:

(a)  give certain information about them to related bodies corporate of the 2Site, any credit reporting agency, other credit providers, collecting agencies or legal firms (some being located in foreign countries) in order to obtain a credit report about them or to recover money which is due and payable from them. The information which may be given is covered by s18E(1) of the Privacy Act 1988 (Cth) (Act) and may include, as relevant, identity particulars and the fact that you have applied for credit or the Guarantor has offered to act as guarantor;

(b)  give a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) of the Act); and

(c)  in assessing whether to grant your credit application or whether to accept the Guarantor as a guarantor, seek and obtain information about them from a credit reporting agency or another credit provider and may give information about them to another credit provider. The information may include anything about credit worthiness, history, standing or capacity (including information about commercial credit) which credit providers are permitted by the Act to obtain or receive.

 

10.4  Severability

Any provision of these Ts&Cs which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. The severance of the prohibited or unenforceable term or part of a term will not invalidate the remaining provisions or affect the validity or enforceability of the severed term or part term in any other jurisdiction.

10.5  Assignment
Without notice to you, 2Site may transfer any right (including all rights) in respect of this agreement. You must not assign a right or novate

an obligation herein contained without first obtaining the written consent of 2Site.

10.6  Other documentation

You expressly agree and acknowledge that it is a condition of 2Site approving your application for credit that any supply of Goods by the 2Site is subject only to the Ts&Cs.

10.7  Agreement
Upon acceptance of these Ts&Cs by you the Ts&Cs are binding and can only be amended with the written consent of 2Site.

10.8  Costs
You will be liable for all costs of whatsoever nature associated with the exercise of 2Site’s rights under these Ts&Cs, including

costs/commission of a law firm and/or debt collection agency on an indemnity basis.

 

11 GOODS AND SERVICES TAX (GST)

11.1  Unless the contrary intention appears, any published or advertised price and/or invoice is exclusive of GST.

11.2  For the purposes of this clause, the terms words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning in these Ts&Cs.

11.3  If GST has any application to any supply made under or in connection with these Ts&Cs, the party making the supply (for the purposes of this clause only, Supplier) may in addition to any amount or consideration expressed as payable elsewhere in these Ts&Cs, recover from the recipient of the supply (for the purposes of this clause only, Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.

11.4  Any additional amount on account of GST recoverable from the Recipient under this clause shall be calculated without any deduction or set-off of any amount, and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under these Ts&Cs.

11.5  The Supplier must issue to the Recipient a Tax Invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under these Ts&Cs or in respect of any supply under these Ts&Cs.

11.6  Where an adjustment event in relation to a supply under these Ts&Cs has occurred, the Supplier must issue an adjustment note to the Recipient no later than ten Business Days after that adjustment event.

 

12 DEFINITIONS

In this agreement:

(a)  Business Day means a day that the banks are open for business in Perth that is not a weekend or public holiday;

(b)  You means any person, firm or corporation including successors, administrators and assignors who has requested the supply of Goods by 2Site;

(c)  Default Event means the occurrence of any one or more of the following events:

(i) default by you in the due or punctual payment of any amount or observance or the performance of any obligation to 2Site;

(ii) You are or is deemed unable to pay its debts as and when they fall in the opinion of 2Site(acting reasonably)(Insolvency Event); or

(iii) You disputes the terms of any title retention or payment protection provision applicable to any Goods, or refuses to return any Goods to 2Site upon demand;

(d)  Goods means any goods which 2Site has agreed to supply to you;

(e)  Loss means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death, fine or penalty (imposed by a statutory or other authority), loss of profits, anticipated savings or consequential loss or cost (including legal costs on a full indemnity basis); and 

(f)  PPSA means the Personal Property Securities Act 2009 (Cth).