Terms and Conditions

1Definitions

In these Terms and Conditions:

“Authorised Officer”

means a Director or the Sales Manager of the Seller authorised to vary these Terms and Conditions in writing;

“Australian Consumer Law” or “Consumer Law”

means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied as a law of Western Australia by the Fair Trading Act 2010 (WA), as amended from time to time;

“Buyer”

means the person or entity that accepts the Seller’s quotation, whose order is accepted by the Seller, or who otherwise proceeds with the supply of Goods;

“Consumer” has the meaning given in section 3 of the Consumer Law;

“Contract”

means the agreement between the Buyer and the Seller for the supply of Goods, formed in accordance with clause 3;

“EESS”

means the Electrical Equipment Safety System adopted under the Electricity Act 1945 (WA) and its regulations and AS/NZS 4417, governing the marking (RCM) and registration of in-scope electrical equipment;

“Full Payment Amount”

means an amount of AU$100,000 or such other amount notified by the Seller to the Buyer in writing from time to time;

“Goods”

means the merchandise, equipment, parts and services that the Seller agrees to supply to the Buyer;

“GST”

means the goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Hazardous Area”

means an area in which an explosive or flammable atmosphere is or may be present, as classified under the AS/NZS 60079 series;

“IECEx”

means the IEC System for Certification to Standards relating to Equipment for use in Explosive Atmospheres;

“Incoterms”

means Incoterms® 2020, published by the International Chamber of Commerce;

“Manufacturer”

means the original producer of the Goods supplied by the Seller;

“PPSA”

means the Personal Property Securities Act 2009 (Cth), and PPSR means the register established under it;

“Quotation”

means a written quotation provided by the Seller specifying the Goods and prices offered;

“Responsible Supplier” has the meaning given under the EESS;

“Seller”

means Pacific Automation, ACN 008 724 098, and its related bodies corporate;

“Seller’s Premises”

means the premises identified on the Seller’s Quotation or, if not identified, 45 Solomon Road, Jandakot WA 6164;

“Small Business Contract”

means a contract that is a small business contract within the meaning of the Consumer Law;

“Standards”

means the relevant Australian or Australian and New Zealand standards (or where none, international standards) applicable to the Goods and their installation and use;

“Website”

means the Seller’s online trading portal at pacificautomation.com.au;

“Terms and Conditions”

means these terms and conditions of sale, which form part of the Contract.

2Application of these terms

1. 2.1

   These Terms and Conditions apply to every Contract between the Seller and the Buyer, to the exclusion of any other terms (including any terms in the Buyer’s purchase order or other document), unless expressly agreed in writing and signed by an Authorised Officer of the Seller.

2. 2.2

   These Terms and Conditions apply both to sales made through the Website and to sales made to trade and credit-account customers.

3. 2.3

   The Seller may amend these Terms and Conditions from time to time. The current version is published on the Website and applies to all orders placed after publication. Any change does not affect a Contract already formed before the change takes effect.

4. 2.4

   Some clauses limit the Seller’s liability or affect the Buyer’s rights; the Buyer should read them carefully.

3Formation of the Contract

1. 3.1

   Online orders. When the Buyer places an order through the Website, the Seller presents these Terms and Conditions and requires the Buyer to accept them before payment is completed. A Contract is formed when the Seller accepts the order, whether by confirming the order or by dispatching the Goods. The Buyer is bound by the version of these Terms and Conditions presented and accepted at the time the order is submitted.

2. 3.2

   Quotations. A Quotation is valid for 30 days from its date unless otherwise stated or extended in writing by the Seller. The Buyer may accept a Quotation in writing, by issuing a purchase order, or by conduct (including taking delivery of the Goods).

3. 3.3

   Account customers. For a Buyer with an approved credit account, a Contract is formed when the Seller accepts the Buyer’s order.

4. 3.4

   The Seller may decline any order in its sole discretion. Providing that the Seller either does not take payment or refunds any payment made, the Buyer shall not have any other remedy against the Seller for the Seller declining to supply.

5. 3.5

   The Buyer agrees that any verbal instruction to proceed with supply, if accepted by the Seller, is on the basis of these Terms and Conditions.

6. 3.6

   The Buyer agrees that the Seller may correct any typographical, clerical or other error or omission in any sales material, Quotation, price list, invoice or other document without liability on the part of the Seller.

4Consumers and small business

1. 4.1

   Some of the Seller’s customers are Consumers or small businesses for the purposes of the Consumer Law. These Terms and Conditions apply to every Contract, but where the Buyer is a Consumer or the Contract is a Small Business Contract, these Terms and Conditions apply subject to the Consumer Law.

2. 4.2

   Nothing in these Terms and Conditions excludes, restricts or modifies any consumer guarantee, right or remedy under the Consumer Law or any other law that cannot be excluded, restricted or modified by agreement (see clause 15).

3. 4.3

   Any provision of these Terms and Conditions that would be void as an unfair contract term under the Consumer Law does not apply to a Consumer or small business Buyer to the extent that it is unfair; the remaining provisions shall continue to apply.

4. 4.4

   If there is any inconsistency between these Terms and Conditions and the non-excludable provisions of the Consumer Law, the Consumer Law prevails.

5Orders, specifications and suitability

1. 5.1

   The Buyer is responsible for the accuracy of the terms of its order and for providing the Seller with any information necessary to enable the order to be supplied.

2. 5.2

   The Buyer is responsible for selecting Goods that are suitable for its intended application. Except where clause 15 applies, any advice or recommendation given by the Seller or its personnel about the storage, use, application or selection of the Goods is given in good faith and does not amount to a guarantee of suitability or fitness for purpose.

3. 5.3

   The quantity, quality, description and specification of the Goods are those stated in the accepted Quotation or order. Minimum or standard-pack quantities apply as shown in the Seller’s price list.

4. 5.4

   The Seller may change the specification of the Goods to conform with any safety or statutory requirement, or where directed by the Manufacturer, provided the change does not materially affect the quality or performance of the Goods.

5. 5.5

   Where Goods are to be supplied to the Buyer’s specification, the Buyer indemnifies the Seller against any loss, damages, costs and expenses arising from any infringement of intellectual property rights resulting from that specification, except to the extent caused by the Seller.

6. 5.6

   If the Buyer suspends or cancels any part of an order, the Seller may recover from the Buyer the costs reasonably incurred or committed up to the date of cancellation, including the cost of any Goods ordered from the Manufacturer.

6Prices and GST

1. 6.1

   Unless otherwise specified on the Quotation, all prices are quoted EXW (Ex Works) the Seller’s Premises (Incoterms® 2020), in Australian dollars, and exclude freight, carriage, insurance, non-standard packaging, GST and other applicable taxes.

2. 6.2

   Freight is charged in accordance with clause 7.

3. 6.3

   GST and any other applicable taxes are payable by the Buyer in addition to the price.

4. 6.4

   Prices in the Seller’s catalogues, price lists and on the Website are recommended prices only and may be changed without notice prior to acceptance of an order.

7Freight, delivery and risk

1. 7.1

   The Buyer may collect the Goods from the Seller’s Premises or arrange its own carriage. Where the Seller arranges delivery, freight is charged in accordance with the Seller’s freight rates current at the time of order, as published on the Website and shown to the Buyer before the order is submitted.

2. 7.2

   Freight to remote, regional or international addresses, or by a non-standard carrier requested by the Buyer, is charged at cost.

3. 7.3

   All times and dates for delivery are given in good faith but are not guaranteed, and time is not of the essence unless agreed in writing by an Authorised Officer. If delivery has not occurred within 90 days after the quoted delivery date (other than because of force majeure or the Buyer’s act or omission), the Buyer may cancel the undelivered part of the order by written notice and the Seller will refund any payment made for the undelivered Goods.

4. 7.4

   The Seller may deliver the Goods in instalments, and each instalment is treated as a separate Contract for the purposes of invoicing and payment.

5. 7.5

   Delivery is deemed to occur when the Goods are made available for collection at the Seller’s Premises or, where the Seller has agreed to arrange carriage, when the Goods are handed to the carrier, acting as the Buyer’s agent.

6. 7.6

   Risk in the Goods passes to the Buyer on delivery. From that time, the Buyer is responsible for insuring the Goods for their full replacement value.

7. 7.7

   Claims for non-delivery, short delivery or visible damage must be made in writing within seven (7) days of the dispatch date. This clause does not limit any right the Buyer has under the Consumer Law.

8Payment

1. 8.1

   For a Buyer with an approved credit account, payment is due within the credit terms specified in the account approval (typically 30, 60 or 90 days net from the date of statement). The Seller may vary those terms in accordance with clause 9.

2. 8.2

   For a Buyer without an approved credit account, full payment in cleared funds is required before the Seller ships or releases the Goods.

3. 8.3

   For a Buyer located outside Australia, or where the value of a single order by a Buyer without an approved credit account exceeds the Full Payment Amount, full payment must be made to the Seller before shipment.

4. 8.4

   Payment may be made by electronic funds transfer, BPAY, or credit card. Credit card payments may incur a surcharge equal to the merchant service fee charged to the Seller plus GST.

5. 8.5

   The Seller may charge interest on overdue amounts at the rate of [1.5% per month] calculated daily from the due date until payment is received. The parties acknowledge that this rate is a genuine pre-estimate of the Seller’s cost of carrying overdue debt.

6. 8.6

   The Buyer must pay the Seller’s reasonable costs of recovering any overdue amount, including debt-collection and legal costs.

7. 8.7

   Except where the Buyer has a right to do so under the Consumer Law or the Seller agrees in writing, the Buyer must not withhold, deduct or set off any amount payable to the Seller.

9Credit terms and credit limits

1. 9.1

   The Seller may, in its discretion, extend credit to the Buyer subject to any conditions it sees fit. Any such credit may include a credit limit.

2. 9.2

   The Seller may at any time and without notice vary, suspend or withdraw credit, including placing the Buyer’s account on hold until any overdue amount is paid.

3. 9.3

   The Seller may decline to ship further Goods to a Buyer whose account is on hold, in arrears, or over its credit limit.

10Retention of title

1. 10.1

   Legal and equitable title in the Goods remains with the Seller until the Seller has received payment in full for those Goods and all other amounts owing by the Buyer to the Seller.

2. 10.2

   Until title passes, the Buyer holds the Goods as bailee for the Seller and must keep them safe, identifiable and insured, store them so that they are identifiable as the Seller’s property, and not create any security interest over them in favour of a third party.

3. 10.3

   The Buyer may resell or use the Goods in the ordinary course of its business. If it does so before title passes, the Buyer sells as principal (not as the Seller’s agent) and holds the proceeds on trust for the Seller to the extent of any amount owing.

4. 10.4

   If the Buyer defaults in payment, becomes insolvent or breaches these Terms and Conditions, the Seller may (on reasonable notice and, where practicable, during normal business hours) enter any premises where the Goods are located to recover them, and the Buyer authorises the Seller to do so and releases the Seller from liability for reasonable and lawful entry for that purpose.

11PPSA and security interest

1. 11.1

   These Terms and Conditions constitute a security agreement for the purposes of the PPSA. The retention of title in clause 10 gives rise to a purchase money security interest in favour of the Seller over all Goods supplied (present and after-acquired), extending to their proceeds. The Seller’s security interest under these Terms and Conditions is limited to the Goods supplied by the Seller and their proceeds, and does not extend to any other assets of the Buyer.

2. 11.2

   By accepting these Terms and Conditions, the Buyer consents to the Seller registering its security interest on the PPSR, and must do anything reasonably necessary to ensure the security interest is perfected with the priority the Seller requires. The Seller may register its interest on the PPSR but is not obliged to do so. Where the Seller has registered a security interest, it will release or amend that registration in respect of Goods that have been paid for in full. The Buyer must notify the Seller within five (5) business days of any change in its name, ABN, address, ownership or control.

3. 11.3

   For Goods not used predominantly for personal, domestic or household purposes, the Buyer and the Seller contract out of sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA, and the Buyer waives its right to receive any notice or statement that may be waived under the PPSA.

4. 11.4

   The Seller bears the cost of registering its security interest. The Buyer must pay the Seller’s costs of enforcing or maintaining the security interest, including in any insolvency proceeding. Terms used in this clause have the meanings given in the PPSA.

12Hazardous-area (Ex) equipment and electrical safety

1. 12.1

   The Buyer is responsible for the correct selection of Goods for its application, including the classification of any Hazardous Area (zone, gas or dust group and temperature class) in which the Goods are to be used, and for confirming that the Goods are rated and suitable for that area. The Seller relies on the information provided by the Buyer.

2. 12.2

   Where Goods are certified for use in Hazardous Areas, the Seller supplies them with the applicable certification (for example, IECEx certification) issued in respect of the Goods. The Seller does not itself certify the Goods and gives no assurance beyond the certification issued by the certifying body or Manufacturer.

3. 12.3

   Where the Seller is the Responsible Supplier for electrical equipment under the EESS, the Seller will ensure that equipment is registered and marked (RCM) as required. The Buyer must not on-supply, install or use such equipment otherwise than in accordance with its registration and marking.

4. 12.4

   The Buyer must ensure that the Goods are installed, inspected, tested, maintained, repaired and used only by appropriately licensed or competent persons, in accordance with the Manufacturer’s instructions, the applicable Standards (including the AS/NZS 60079 series for explosive atmospheres and the AS/NZS 3000 wiring rules), and all applicable work health and safety and electrical safety laws.

5. 12.5

   The Buyer must not modify, repair or combine the Goods in any way that may affect their certification, protection concept or compliance. Any such modification voids the Seller’s warranty and any statement by the Seller as to compliance.

6. 12.6

   To the extent permitted by law and subject to clause 15, the Seller is not liable for any loss arising from use of the Goods outside their certified ratings or intended application, from incorrect area classification, or from installation, maintenance or use by persons who are not appropriately licensed or competent.

13Product compliance, certification and information

1. 13.1

   Specifications, drawings, weights, dimensions, illustrations and other descriptive material in the Seller’s catalogues, on the Website and in marketing materials are approximate and provided as a general description only, and do not form part of the Contract unless expressly stated in the accepted Quotation or order.

2. 13.2

   Any statement as to the compliance, certification, approval or performance of the Goods is given by reference to the certification and information provided by the Manufacturer or the relevant certifying body current at the time of supply. Except where clause 15 applies, the Seller does not warrant that the Goods comply with any particular standard, or are fit for any purpose, beyond what the Seller has stated in writing.

3. 13.3

   The Buyer must satisfy itself, before ordering, that the Goods are fit for the Buyer’s intended purpose and meet any legal or regulatory requirement applicable to the Buyer’s use.

14Warranty

1. 14.1

   The Seller warrants that, at the time of delivery, the Goods conform to their published specifications and are new and free from defects in materials and workmanship. Subject to clause 14.2, the Seller will repair or replace, at its option, any defect in materials or workmanship that becomes apparent within 12 months from the date of shipment. This express warranty is in addition to, and does not limit or replace, any rights the Buyer has under the Consumer Law (see clause 15).

2. 14.2

   The warranty in clause 14.1 is subject to the following conditions:

   1. the Goods are returned to the Seller with proof of purchase;
   2. the serial number and any certification markings have not been removed, defaced or altered, and the Goods have not been tampered with;
   3. the failure has not arisen from fair wear and tear, misuse, abnormal conditions, failure to follow the Seller’s or Manufacturer’s instructions, alteration or repair without written consent, or use with incompatible products; and
   4. the failure has not arisen from any drawing, design or specification supplied by the Buyer.
3. 14.3

   The warranty in clause 14.1 does not cover parts or equipment not manufactured by the Seller; for those Goods the Buyer’s remedy is limited to the Manufacturer’s warranty, the benefit of which the Seller will, at the Buyer’s request, assign to the Buyer to the extent it is assignable.

4. 14.4

   For Goods returned that are found not to be defective, or whose failure is caused by misuse or improper installation, the Seller may charge the Buyer its costs, including but not limited to testing fees.

15Australian Consumer Law

1. 15.1

   Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, guarantee, right or remedy conferred on the Buyer by the Consumer Law or any other law that cannot be excluded, restricted or modified by agreement.

2. 15.2

   Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use, and to the extent permitted by section 64A of the Consumer Law, the Seller’s liability for failure to comply with a consumer guarantee is limited, at the Seller’s option, to replacing or repairing the Goods, supplying equivalent Goods, or paying the cost of doing so.

3. 15.3

   Where the Seller supplies services not of a kind ordinarily acquired for personal, domestic or household use, and to the extent permitted by section 64A, the Seller’s liability for failure to comply with a consumer guarantee is limited, at the Seller’s option, to supplying the services again or paying the cost of doing so.

16Limitation of liability

1. 16.1

   Subject to clause 15 and to the extent permitted by law, the Seller is not liable to the Buyer for any indirect, consequential, special or punitive loss, or for loss of profit, revenue, business, contracts, goodwill, opportunity, savings or data, however arising (whether in contract, tort (including negligence), under statute or otherwise).

2. 16.2

   Subject to clause 15 and to the extent permitted by law, the Seller’s total liability for any claim arising under or in connection with a Contract is limited, at the Seller’s option, to the repair or replacement of the Goods, the supply of equivalent Goods, or a refund of the price paid for the Goods to which the claim relates; and the Seller’s aggregate liability under a single Contract does not exceed the price paid under that Contract.

3. 16.3

   The Buyer indemnifies the Seller against any claim by a third party for injury, loss or damage arising from the Buyer’s use, storage, installation, resale or disposal of the Goods, except to the extent the claim is caused by the Seller’s negligence or breach of a guarantee that cannot be excluded by law.

4. 16.4

   Nothing in this clause limits any liability that cannot be excluded or limited by law, including liability for death or personal injury caused by the Seller’s negligence, or for fraud.

17Returns

1. 17.1

   The Buyer may not return Goods without an approved Goods Return Authority (“GRA”) number issued by the Seller in advance. The Seller will not accept Goods returned without a GRA.

2. 17.2

   Where the Seller issues a GRA, the following conditions apply:

   1. the Buyer must prepay all return freight and packing costs, unless the return results from an incorrect supply by the Seller;
   2. the GRA number must accompany the returned Goods with a copy of the original invoice;
   3. the Goods must be returned in original full-pack quantities and in “as new” saleable condition with all original packaging;
   4. custom-made, indent or specially procured Goods are not returnable, except where required under the Consumer Law;
   5. the application to return must be made within 30 days of the original invoice date; and
   6. a restocking charge of 10% of the invoice value applies. No restocking charge applies where the return results from an incorrect supply by the Seller.
3. 17.3

   This clause does not apply to, or limit, the Buyer’s rights to a remedy under the Consumer Law.

18Inspection, test and certification

1. 18.1

   Goods are, where the Seller considers it appropriate, subject to the Seller’s and the Manufacturer’s quality, test and inspection procedures. Any additional certification, inspection or testing requested by the Buyer, beyond that required to maintain the Manufacturer’s product certification, is charged to the Buyer at cost.

19Intellectual property

1. 19.1

   All intellectual property rights in or relating to the Goods (including patents, designs, copyright, trade marks, drawings, specifications, software and firmware) remain the property of the Seller or its Manufacturer. The Buyer acquires no rights in that intellectual property by purchasing the Goods.

2. 19.2

   Technical material supplied by the Seller with a Quotation is confidential and remains the property of the Seller or its Manufacturer. The Buyer may use it only to evaluate the Quotation, confirm the order or operate the Goods, and must not disclose it to any third party without the Seller’s written consent.

20Confidentiality

1. 20.1

   Each party must keep confidential all information received from the other that is marked confidential or is by its nature confidential, and must not disclose it other than to its personnel or advisers who need to know it and are bound by obligations of confidence.

2. 20.2

   This clause does not apply to information that is public, lawfully obtained from a third party without restriction, independently developed, or required to be disclosed by law.

21Privacy

1. 21.1

   The Seller’s collection, use, storage and disclosure of personal information is governed by the Seller’s privacy policy, available on the Website, which forms part of these Terms and Conditions by reference.

2. 21.2

   The Buyer consents to the Seller collecting, using and disclosing personal information for the purposes of supplying the Goods, assessing creditworthiness, recovering debts, and exchanging credit-related information with credit reporting bodies and trade references.

3. 21.3

   The Buyer acknowledges that the Seller uses third-party platforms and service providers located overseas (including in the United States and the European Union) to operate the Website and its business systems, and that personal information may be disclosed to those providers for the purposes of order fulfilment and support. The Seller’s privacy policy sets out the countries to which personal information may be disclosed.

22Force majeure

1. 22.1

   The Seller is not liable for any failure or delay in performance to the extent caused by events beyond its reasonable control, including acts of God, fire, flood, pandemic, war, terrorism, industrial action, embargo, transport disruption, cyber attack, failure of utilities or communications, supplier failure, change in law or government action.

2. 22.2

   The Seller will notify the Buyer of any such event as soon as reasonably practicable, and its performance dates are extended by the period of the delay. If the event continues for more than 3 months, either party may terminate the Contract by written notice, and the Seller will refund any payment for Goods not delivered.

23Default and termination

1. 23.1

   The Seller may, without limiting any other right and without notice, suspend deliveries, demand immediate payment, or terminate the Contract if the Buyer fails to pay any amount when due; breaches a material provision and does not remedy it within 14 days of written notice; becomes insolvent or has an administrator, receiver or liquidator appointed; or ceases, or threatens to cease, to carry on business.

2. 23.2

   On termination, all amounts owing by the Buyer to the Seller become immediately due and payable.

24Disputes and dispute resolution

1. 24.1

   The parties must use reasonable endeavours to resolve any dispute or difference (“Dispute”) by good-faith negotiation.

2. 24.2

   A party may give written notice of a Dispute. Within 14 days, senior representatives of each party (with authority to bind it) must confer in good faith. Those discussions are without prejudice.

3. 24.3

   If the Dispute is not resolved within 30 days of that notice:

   1. where the amount in dispute exceeds AUD $5,000,000 or a party is located outside Australia, the Dispute will be referred to arbitration in Perth, Western Australia, administered under the Commercial Arbitration Act 2012 (WA); or
   2. in any other case, the parties submit to the exclusive jurisdiction of the courts of Western Australia.
4. 24.4

   Nothing in this clause prevents a party from seeking urgent interlocutory or injunctive relief from a court.

25Notices

1. 25.1

   A notice under the Contract must be in writing and sent to the recipient’s registered office, last notified address, or email address.

2. 25.2

   A notice is taken to be received: if delivered by hand, on that business day; if sent by prepaid post, on the second business day after posting; and if sent by email, when it leaves the sender’s system, provided no delivery-failure notice is received.

26General

1. 26.1

   Governing law. The Contract is governed by the laws of Western Australia.

2. 26.2

   Entire agreement. These Terms and Conditions, together with any accepted Quotation, constitute the entire agreement between the parties and supersede all prior representations and agreements about their subject matter.

3. 26.3

   Assignment. The Buyer may not assign its rights or obligations without the Seller’s written consent. The Seller may assign its rights without the Buyer’s consent.

4. 26.4

   Waiver and severability. A right is only waived in writing. If any provision is void or unenforceable, it is severed to that extent and the remaining provisions continue in force.

5. 26.5

   Cumulative rights and further acts. The Seller’s rights are cumulative and do not exclude any other rights at law or in equity. Each party must do all things reasonably necessary to give effect to these Terms and Conditions.

6. 26.6

   Counterparts. The Contract may be executed in counterparts, including by electronic signature.