1) Sale of goods / Provision of services
(a) Titomic Limited (“Titomic”) provides goods and/or services subject to these terms and conditions, unless otherwise agreed in writing (“Conditions”).
(b) When a person (“the Customer”) makes an offer or order to purchase goods and/or services and that offer, or order is accepted by Titomic (Order), the Customer agrees and acknowledges that these Conditions will be binding on both parties for the purposes of the sale of the goods and/or provision of services.
(c) Offers, estimates or quotations (Quotations) given by Titomic are, except to the extent otherwise stated in such document, subject to these Conditions.
(d) Any Quotation from Titomic:
Will not bind Titomic or form part of a Contract unless given, or subsequently confirmed, in writing, and accepted by the Customer through placement of an order; and
May be subject to alteration at any time prior to Titomic accepting an order from the Customer.
(e) The entire agreement (Agreement) between Titomic and the Customer for the purchase or supply of the goods and/or services is:
any other terms and conditions which are imposed by law and which cannot be excluded; and
any agreed written variation.
(f) These Conditions shall apply to all Agreements to the exclusion of any terms and conditions or any other materials which the Customer may purport to apply, or which are endorsed upon any correspondence or documents issued by the Customer irrespective of their date of communication to Titomic, except to the extent that the Customer’s terms and conditions are agreed to in writing and signed by Titomic.
(g) Titomic may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to quotes or orders placed after the notice date.
(a) Information provided by Titomic in respect of goods and/or services (including price lists) does not constitute an offer to sell but an invitation to treat only.
(b) An order or offer to purchase is an offer to purchase goods and/or services at the price set by Titomic as at the date of delivery (plus delivery and other applicable charges).
(c) Titomic reserves the right to accept or reject any order (in whole or in part) for any reason.
(d) An offer is accepted by Titomic when Titomic accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods or services.
(e) Without limiting clause 2(b), Titomic may reject an order or offer if the Customer fails to pay for other goods and/or services ordered, the goods are unavailable, there is an error in the price or the description of goods and/or services, or an error in the order.
(f) An order placed by the Customer will only form part of a contract when it has been received and accepted by Titomic. Acceptance by Titomic of any order issued by the Customer may be in writing or by Titomic delivering to the Customer the products or services which are the subject of an order. However, any terms and conditions contained in any order or other document issued by the Customer will not form part of a contract unless they are expressly signed and accepted by Titomic’s authorised representative.
Titomic reserves the right to change the specifications of goods and/or services in a Quotation from time to time to the extent that these are necessary for safety or engineering requirements.
(a) Unless otherwise notified by Titomic in writing, all prices for goods and/or services –
(b) are in Australian dollars; and
(c) exclude delivery and other applicable charges.
(d) Unless otherwise agreed in writing and subject to Clause 4.3, the price payable for the goods and/or services is the price set under a valid and binding Quotation (plus delivery and other applicable charges).
If the Customer requests any variation to the Agreement, Titomic may increase the price to account for the variation, including: any relevant increase in exchange rates, costs of labour, parts, materials and other inputs, including, without limitation, energy and other overheads
(e) Unless otherwise stated in the Quotation, prices quoted for export of product are FCA (Incoterms 2010) dispatch location nominated by Titomic and for non-export are Ex Works (Incoterms 2010) and do not include freight costs, insurance, import duties or government taxes in the destination country, or costs of delivery within the destination country, which are the sole responsibility of the Customer. In addition, unless otherwise agreed, the Customer assumes the responsibility and costs of export formalities.
(a) The Customer must pay the price (and delivery and other applicable charges) for the goods and/or services without set off or deduction in accordance with the payment terms specified on the invoice provided by Titomic. Titomic reserves the right to pass on to the Customer all costs associated with particular forms of payment (including surcharges pursuant to the Competition and Consumer Amendment (Payment Surcharges) Act 2016). Where a payment is due on a weekend or public holiday in Victoria, payment is required by the preceding working day.
(b) Payment must be made on or before the 30th day from the date of delivery of the products (Due Date).
(c) Where the Customer fails to make full payment by the Due Date, Titomic may, in its absolute discretion – refuse to supply the Customer with further goods and/or services;
charge interest on the overdue account at a rate of 1% per month calculated daily for each day following the Due Date until payment is made in full;
require the Customer to pay for further goods and/or services in full prior to delivery. and/or
if the amount due remains unpaid after providing 7 days’ notice to the Customer of such breach and an opportunity to rectify the breach, treat the failure of the Customer to make payments as a repudiation of contract by the Customer. Such repudiation shall entitle Titomic to elect, without prejudice to any other rights of Titomic, to terminate the contract in whole or in part (including any order or part of an order) and, in either case, to recover damages for the breach of contract.
(d) Time is of the essence in respect of the Customer’s obligation to make payment for goods and/or services.
(e) Clause 5 may also be relied upon, at Titomic’s option where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
(f) Any payments the Customer makes to Titomic will be applied as follows:
first, as reimbursement for any collection costs and expenses incurred;
second, in payment of any interest charged to the Customer in accordance with clause 5(b)(ii); and
third, in satisfaction or part satisfaction of the oldest portion of the Customer’s account.
In the case of supply of products, delivery shall be:
in the case of non-export, ex works (Incoterms 2010) at the premises nominated by Titomic, or
in the case of export, FCA (Incoterms 2010) to the dispatch location nominated by Titomic,
unless the parties agree in writing to alternative delivery arrangements. If the Customer fails or refuses or indicates to Titomic that it will fail or refuse, to take or accept delivery, then the products shall be deemed to have been delivered on the date when Titomic sought to deliver the products. The risk in the products and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on delivery as outlined herein.
(a) In the case of supply of services, delivery shall be deemed to have occurred on completion by Titomic of the agreed services.
(b) The completion or delivery dates specified in any Quotation are estimates only. Titomic is not bound by any completion or delivery dates specified in a Quotation.
(c) Titomic will endeavour to effect delivery in any time stated (if a time is stated in writing) and otherwise within a reasonable period. Titomic will endeavour to deliver all products the subject of an order at the same time. However, where this is not possible, in order to minimise any detriment that may be caused to the Customer, Titomic will deliver products to the Customer by instalments within a reasonable period of time.
(d) Titomic may make part delivery of the products and Titomic may invoice the Customer for the goods or services provided.
(e) The Customer acknowledges that all quoted delivery times are estimates only and failure to deliver by those time will not constitute a breach of these Conditions. Titomic will not be liable for any loss or damage howsoever arising as a result or consequence of any delay in delivery. The Customer will not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery
(f) If, at the Customer’s request, delivery of any products is delayed after notification by Titomic to the Customer that the products are ready for delivery, the Customer agrees to pay any reasonable storage costs incurred or to be incurred by Titomic.
(g) The Customer indemnifies Titomic against any loss or damage suffered by Titomic, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and Titomic has not used due care and skill
(h) If Titomic fails to deliver in accordance with clause 7(c) by reason of:
inability to obtain supplies of the products (where it is not the manufacturer) or materials or parts from approved sources;
import or export restrictions;
any strike or combination of worker, shortage of labour or lockout;
any fault of the Customer; or
any other event or circumstance beyond the reasonable control of Titomic,
Titomic may at its option cancel any order or any unfulfilled part of an order or extend the time for its performance or completion by the time lost because of the event preventing or delaying delivery. Titomic shall not be liable for delay in delivery of the products or services as a result of any of the causes set out in this clause.
(i) If the Customer claims that the goods were defective, short delivered or otherwise not the goods specified in the order, the Customer must notify Titomic in writing (including sufficient particulars) within seven (7) days of delivery. If the Customer fails to notify Titomic within this time, the goods will be treated as having been accepted by the Customer and Titomic will be discharged from any liability in respect of the goods being wrong or defective or short delivered.
(j) Titomic shall not be liable for any loss, deterioration or damage caused to the products after risk passing.
7) Title to goods
(a) Ownership in the goods remains with Titomic and title does not pass to the Customer until Titomic has received payment in full for the goods and all sums owing on Customer’s accounts with Titomic.
(b) From the time the goods are delivered to the Customer until the time title passes to the Customer in accordance with clause 8(a), the Customer takes custody of the goods and retains them as a fudiciary bailee of Titomic.
(c) If the Customer:
(a) defaults in paying any sums due to Titomic under any order; or
(b) is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors or if a mortgagee takes possession of any of the Customer’s assets; or
(c) is a company and has a provisional liquidator, liquidator, receiver, receiver and manager, trustee for creditors or in bankruptcy, administrator or analogous person appointed to it or its property, or if a mortgagee takes possession of any of the Customer’s assets; or
(d) is otherwise unable to pay its debts as and when they fall due, any amount to become due under the Agreement shall become immediately due and payable and the Customer shall not sell or otherwise deal with any products in its possession and, (without prejudice to any other right or remedy Titomic may have) upon Titomic’s request, the Customer will return the products to Titomic immediately or consent to Titomic entering the premises at which the goods are stored and retaking possession of the goods.
(d) Subject to clause 8(b), the Customer is authorised to sell the products in the ordinary course of business and shall hold the proceeds of any sales separately from its own moneys and Titomic has a Security Interest (pursuant to clause 8(h)) in those proceeds. Provided that such authority may be revoked by notice from Titomic at any time if Titomic considers the creditworthiness of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations under the Agreement. Such authority shall be deemed automatically revoked if the Customer becomes subject to any of the circumstances under clause 8(c).
(e) The Customer shall, if required by Titomic, store separately those products in respect of which title is retained by Titomic and shall clearly identify such products as the property of Titomic. Titomic shall, upon revoking its authority contained in clause 8.4 or such authority being automatically revoked under clause 8.3, have the irrevocable right to enter upon the premises where the products are situated, or where Titomic suspects the products are situated, without committing a trespass and take possession of and remove the products (or in accordance with clause 8(f), any products owned by the Customer into which they become incorporated) even though they may have been attached to other goods or land which is not the property of the Customer, and to use the name of the Customer and to act on its behalf to recover possession of Titomic’s products, furthermore the Customer also indemnifies Titomic from and against all costs, claims, demands or actions by any party arising from such action. The Customer will remain liable to Titomic for the price of any damaged, used, incomplete, broken or obsolete products that Titomic determines have no commercial value or are unable to be resold and for the difference in the original purchase price agreed by the Customer from actual resale value. Titomic may also require the Customer to pay Titomic’s reasonable costs in exercising any of its rights under this clause 8(e) together with any related costs such as transportation and repackaging. The Customer indemnifies Titomic from and against all loss suffered or incurred by Titomic as a result of exercising its rights under this clause.
(f) If the products in which title is held by Titomic are to become fixture or fittings of any real property owned by the Customer or any other person, the Customer acknowledges, or where the Customer does not own the real property to which the products are to be affixed, shall procure the owner to acknowledge, and in either case shall procure any mortgagee of such real property to acknowledge that, notwithstanding such incorporation, such products remain the property of Titomic until title in the products passes to the Customer, and that all rights of Titomic set out in these Conditions remain.
(g) The Customer acknowledges and agrees that:
a contract to which these Conditions apply constitutes a security agreement;
in accordance with clause 8 of these Conditions, it grants to Titomic a security interest (as defined in the Personal Property Securities Act 2009 (Cth) (PPSA) in all products supplied by Titomic and has a Purchase Money Security Interest in all present and future goods supplied by Titomic to the Customer and the proceeds of the goods and all other moneys payable to Titomic by the Customer;
the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time;
the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Titomic on the Personal Property Securities Register;
Titomic may apply to register and register any security interests created under the Agreement on public registers including the Personal Property Securities Register (as defined in the PPSA) (PPSR) at any time before or after delivery of the products by Titomic; and
Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA;
The Customer and Titomic agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
(h) To the extent permitted by the PPSA, the Customer agrees that:
the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Titomic will apply only to the extent that they are mandatory or Titomic agrees to their application in writing; and
where Titomic has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
(i) The Customer must immediately upon the Titomic’’s request:
do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
procure from any person considered by Titomic to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Titomic may at any time require.
For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
In the event of a product recall over the goods, the Customer agrees to give Titomic such assistance as is reasonably required in relation to that recall.
In the absence of manifest error –
(a) the written records of Titomic in relation to a delivery of goods will be conclusive evidence of the type and quantity of goods delivered and the date and time of delivery; and
(b) certification from a Titomic authorised representative will be conclusive evidence of the amount owed for the goods.
10) Exclusion of warranties and liability
(a) Pursuant to clause 7, Titomic will use reasonable endeavors to meet any estimated dates for delivery of the Products but will not be liable for any loss or damage the Customer suffers or suffered by any third party for failure to meet any estimated date.(b) Titomic gives no express warranty in relation to the goods and/or services. These Terms do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products or any contractual remedy for their failure. As, to the fullest extent permitted by law, all conditions and warranties, whether express or implied by law or otherwise, which may be binding on Titomic are excluded.
(c) Where a condition or warranty cannot be lawfully excluded, the sole liability of Titomic for any breach of that condition or warranty is limited, at Titomic’s election, to:
(a) replace or repair the goods (including the possible replacement with equivalent goods);
(b) payment of the cost of replacing or repairing the goods (including purchasing or acquiring equivalent goods); or
(c) re-performing any non-conforming services.
(d) The Customer agrees and acknowledges that it:
has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Titomic in relation to the Products or their use or application; and
has not made known, either expressly or by implication, the purpose for which it requires the Products and it has the sole responsibility of satisfying itself that the Products are suitable for their use.
The Customer indemnifies Titomic for any costs incurred when the Customer requests Titomic, pursuant to clause 11(c) to repair faulty Products that are subsequently found not to be faulty, or where the Customer is found to have caused the Products to become faulty through abnormal use or otherwise.
The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
Any description of the goods and/or services contained in the order or any other document is given by way of identification only.
(a) To the fullest extent permitted by law, the Customer indemnifies Titomic and agrees to keep Titomic indemnified, against all loss, liability, costs (including legal costs) and expenses arising directly or indirectly as a result of or in connection with the supply of goods and/or services.
(b) For the avoidance of doubt Titomic excludes any liability for legal costs and disbursements on and, without limitation, any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses suffered by the Customer under or in connection with these Terms.
(a) The Customer will be in default if the Customer breaches these Conditions.
(b) Without limiting clause 13(a), the Customer breaches these Conditions if –
payment in full for the goods and/or services is not made by the Due Date;
the Customer attempts to assign or transfer the benefit of these Conditions without obtaining the consent of Titomic;
if the Customer is an individual and declares or commits an act of bankruptcy or enters into an arrangement or composition with its creditors; or
if the Customer is a corporation and suffers the appointment of controller, administrator, receiver or liquidator, has winding up proceedings initiated against it or ceases or threatens to cease carrying on business.
(c) If the Customer is in default under clause 13(a), Titomic may:
be reimbursed for and recover from the Customer, all costs and expenses incurred by Titomic in seeking to collect debts, including without limitation, the costs of any collection agents and legal costs (on a solicitor and client basis);
demand immediate payment for all other goods and/or services supplied by Titomic, notwithstanding that the payment of those goods and/or services would not otherwise have been then due and payable;
terminate or suspend delivery of any order for goods and/or services; and/or
terminate any contract with the Customer and cease supplying the Customer with goods and/or services.
Titomic is not obliged to notify the Customer before exercising a right under clause 13(c) and these rights will be in addition to any other rights that Titomic may have.
13) Force majeure
If a Party is prevented from or delayed in complying with an obligation (other than to pay money) under these Conditions by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.
14) Intellectual Property
(a) All intellectual property rights in or relating to products or services supplied by Titomic, including in relation to the development, manufacture, use, operation, repair or maintenance of the products, and in or in relation to any company-licensed, commissioned or created tooling, materials, drawings, samples, reports, work results and other documents, vests in and shall remain at all times the sole and exclusive property of Titomic or its licensor.
(b) Titomic is not liable for any claims arising from an actual or alleged infringement of a third party’s intellectual property rights:
where such claim arises due to Titomic agreeing to supply the product or services in accordance with Customer’s specifications or using Customer’s Materials;
where the actual or alleged infringement of the intellectual property rights is due to use of Titomic’s product in conjunction with another product not supplied by Titomic; and
where the products or work results produced by Titomic in providing the services are used in a way which could not have been foreseen by Titomic.
(c) If Titomic supplies any products or services in accordance with the Customer’s specifications or using Customer’s materials, the Customer shall indemnify Titomic from and against all actions, claims, demands, costs, expenses and liabilities arising in connection with any alleged or actual infringement of the intellectual property rights of a third party.
(d) The Customer shall not use any trademark owned or licensed by Titomic, or any substantially identical or misleadingly similar words, in a company name, business name, domain name or email address.
15) Control and Restricted Products
(a) The sale, resale or other disposition of products and any related technology or documentation are subject to the export control laws, regulations and orders of Australia and may be subject to the export and/or import control laws and regulations of other countries. The Customer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any products to any country to which such export or transmission is restricted or prohibited. The Customer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
(b) Titomic shall not be liable for any loss or damage arising from controls referred to in Clause 16(a) or any other restrictions imposed on the resale or use of the products by other legislation.
(c) If the manufacture or use or sale of the products shall be forbidden or restricted by any competent government authority, any costs or expenses incurred by Titomic in connection with any contract for manufacture, use or sale shall be paid by the Customer.
(a) Titomic may terminate or suspend the Agreement (or any part thereof, including any order or part of any order) if the Customer is in breach of:
the contract, and the Customer remains in breach after receiving 7 days’ notice from Titomic of such breach and the opportunity to rectify the breach; or
in the event a default is triggered under Clause 13.
(b) The Customer must, and warrants that it will:
comply with all applicable laws in relation to the conduct of its business including laws relating to bribery and corruption;
ensure that its actions or omissions do not cause Titomic to be in breach of any applicable laws; and
immediately notify Titomic of any breach of this clause.
(c) Titomic may, without liability to the Customer and in addition to its rights pursuant to clause 17(a), immediately terminate or suspend the contract and any outstanding orders if the Customer or any of its employees or representatives:
are charged with any criminal offence in relation to bribery or corruption; or
act in a manner which, in Titomic’s reasonable opinion, could bring Titomic into disrepute; or
act dishonestly, fraudulently or illegally.
17) Confidentiality of Company Information
(a) Each party agrees to keep confidential the other party’s financial, technological (including designs, drawings, specifications, technical handbooks), strategic, financial and business information, disclosed in the course of, or arising from the Agreement (Information).
(b) All Information owned by Titomic or which may be generated by Titomic in the course of the Agreement remains or shall become the property of Titomic and may only be used by the Customer in fulfilling its rights and obligations under the Agreement. Otherwise, no Information may be disclosed to any third party without Titomic’s prior written consent.
(c) Each party agrees to effect and maintain adequate security measures to safeguard the other Party’s Information from access or use by any unauthorised person and not to disclose any terms of the Agreement or Information except where disclosure is necessary to comply with that contract or any other agreement between the parties, or if the disclosure is required by law.
(d) Either party must, on becoming aware of any breach of confidentiality, immediately inform the other party, investigate the breach and report to the other party as to the outcome of the investigation
(a) If a provision in these Conditions is unenforceable, illegal or void then it is severed, and the remaining terms and conditions continue to operate.
(b) The Customer must not assign or otherwise deal with these Conditions without the consent of Titomic, which may be given or withheld at Titomic’s absolute discretion.
(c) All of the rights and obligations of each Party under these Conditions which by their nature or context must survive termination and/or expiry, will survive the termination and/or expiry of these Conditions.
(d) A notice to be given by a party to the other party under the Contract must be in writing, directed to the party’s address as specified in the Contract (or to such other address notified in writing by the receiving party); and left at or sent by prepaid registered post or hand delivery to that address. A notice will be deemed to be given:
on the day of delivery;
3 days after the date of posting by prepaid registered post if the Customer is located in Australia; or
14 days after the date of posting by prepaid registered post if the Customer is located outside Australia, as the case may be.
19) Governing Law
(a) The Contract shall be deemed to have been entered into in the State of Victoria, Australia and shall be construed, enforced and performed in accordance with the laws of that State. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
(b) The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Contract.