Definitions
In these conditions:
Customer means the customer to whom Olex has contracted to supply Goods;
Fixed Price Contract means a contract where item prices have been fixed using financial instruments such as (but not limited to) forward purchase contracts for metals to offset material price variations. Unless expressly stated otherwise, all Fixed Price Orders are subject to escalation for metals and consequent adjustment of prices at date of order.
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)
Orders
2.1 A quotation given by Olex to the Customer is not an offer to sell. A contract between Olex and the Customer only arises in accordance with clause 2.2.
2.2 Each 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 an order, which may be by supplying all or part of the Goods ordered.
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 order. No variation of these conditions binds either party unless confirmed in writing by Olex.
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 Where Olex gives a quotation to the Customer in respect of the price of goods, subject to any express contrary provision in the quotation, prices quoted apply only to contracts made within 60 days of the date of the quotation. After that, prices quoted are subject to change without notice to reflect prices in effect as at the date of invoice.
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 In accepting fixed prices under a Fixed Price Contract with Olex, the Customer agrees to purchase the aggregate total lengths listed and contained in the Olex quotation for each and every item in entirety to a tolerance of +/- 20% for delivery at the stated leadtimes.
The Customer further agrees that any purchase over and above the nominated volumes will be priced fully variable for metals and that if total purchases under the Fixed Price Contract result in less than 80% utilisation of the financial instrument employed by Olex to fix prices, any resultant loss or losses incurred by Olex due to excess metals cover will be to the Customer's account.
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:
is calculated daily from the due date until the invoice is paid in full; and
may be capitalised by Olex on the last day of each month.
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).
Supply and risk
6.1 Risk in Goods passes to the Customer on the earlier of:
collection of the Goods by the Customer;
subject to clause 9.2, delivery of the Goods to the Customer; or
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:
- withhold supply to the Customer where:
- Olex has insufficient Goods to fulfil the order;
- the Goods ordered have been discontinued;
- the Customer is in breach of any contract with Olex; or
- Olex considers it appropriate for any other reason;
- supply by instalments; and
- 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:
- terminate any contract with Olex; or
- claim any loss or damage.
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 under clause 7.1(a), 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 financial difficulties, Olex:
- 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;
- may retain all money paid on account of the Goods;
- may cease delivery of the Goods; and
- 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:
deposit all proceeds of sale in a separate and identifiable bank account;
not mix the proceeds with any other money; and
account to Olex for the proceeds; and
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:
Olex and the Customer will be treated as owners of that product as tenants in common in proportion to their respective contributions; and
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.
Liability of Olex and Customer
8.1 Except for rights which the Customer has in respect of the supply of Goods under the Trade Practices Act 1974 (Cth) (Act) and other applicable laws and which cannot be lawfully excluded, restricted, modified or limited:
Olex is not liable for any loss (except under clause 8.2) which the Customer suffers, incurs or is liable for in connection with the supply of Goods under these conditions; and
all conditions and warranties, statutory or otherwise, are excluded in relation to Goods supplied by Olex.
8.2 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:
replacement of the Goods or the supply of equivalent Goods; or
payment of the cost of replacing the Goods or of acquiring equivalent Goods.
8.3 The Customer acknowledges that it has not relied on any representation made by Olex which has not been expressly stated in these conditions.
8.4 The Customer indemnifies Olex against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by Olex:
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
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.
8.5 Olex is not liable for:
loss or damage of any kind resulting from delay or inability to deliver the Goods caused by war, riot, insurrection, act of God, fire, strike, industrial disturbance, accident, acts of government or public authorities, non-delivery of materials from Olex's suppliers or any other cause beyond Olex's control; or
any consequential, special or contingent damages which may be claimed to have resulted from the use of the Goods or from Olex's failure to perform any obligation in accordance with 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.
Method of delivery
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.
Returns and replacement
10.1 Except for a claim based on a condition or warranty implied by law which cannot be excluded, the Customer is not entitled to make a claim against Olex in connection with Goods unless:
the Customer gives Olex written notice of the claim within (14) Fourteen days from the date of delivery of the Goods; and
the Goods in respect of which the claim is made are preserved intact and are made available for Olex's inspection.
10.2 Olex may reject Goods returned by the Customer where the Customer has not complied with the requirements of clause 10.1 and may return those Goods to the Customer at the Customer's expense.
10.3 Olex's liability to the Customer is limited to the options in clause 8.2.
Cancellation or variation of order
11.1 The Customer may cancel or vary an order only with Olex's written consent. The Customer is liable for all work undertaken and material ordered or used by Olex up to the time of Olex's consent.
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.
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.
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.
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:
leaving it at or posting it to the Customer's address; or
faxing it to the Customer's fax number, last notified in writing to Olex, and is taken as given;
at the time it is left;
if posted, on the next business day after it is posted; or
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.
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.
Interpretation
17.1 In these conditions, unless the context requires otherwise:
if the Customer comprises more than one person, a promise or agreement by the Customer binds each person individually and all of them jointly;
a reference to the Customer includes the Customer's legal personal representatives and successors; and
a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it.
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).
Warranty
19.1 Olex warrant the merchandise offered to be free from defects of workmanship and material for a period of (12) Twelve months from the date of despatch.
19.2 Olex liability for breach of warranty is limited to the purchase price of the merchandise which has failed through defect or, at Olex's option, the replacement of such merchandise upon its return to Olex with due allowance for the service already rendered.
19.3 Olex will not be responsible for consequential damage, loss, or expense, howsoever arising.
Minimum Order Values
Delivery to a customer's store
20.1 All orders will be subject to a minimum order value of $500 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
20.2 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.
Length Tolerance
21.1 Olex warrants that lengths supplied will fall within the range -/+ 2% of the ordered length or the standard pack length, as applicable.