Terms & Conditions

TWOJAYS GROUP CREDIT TERMS

These Credit Terms form part of the Credit Application by the Customer. Please read them carefully.

1 Application: These Credit Terms apply to any goods or other services sold to the Customer by the Company (except to the extent expressly agreed in writing by the Company).

2 Deposit: The procedure for ordering goods and services is set out in the attached Terms and Conditions of Trade. Where the Customer orders goods or services from the Company, the Customer must pay the Company the non refundable deposit confirmed in the Company’s written acceptance of the Customer’s purchase order within 2 Business Days of the Company accepting the Customer’s purchase order in writing. If no deposit is specified the Customer must pay a deposit of at least 5% in accordance with this clause. The Company will not commence ordering the goods or performing the services until the deposit has been paid.

3 Payment of remainder of Price: The Customer must pay the price for the relevant goods or services (less any deposit paid) within the time period specified in the Credit Application or, if no period is specified, within 28 days from the date of the invoice. The Customer must pay the price for the goods or services in accordance with this clause without set off, counterclaim, withholding or demand. Payment of the price for the relevant goods and services will not be deemed to be made until cleared funds have been received in the Company’s account.

4 Withdrawal of Credit Facility: The Company may withdraw or suspend the Customer's credit facility at any time without notice. Without limiting the right to withdraw or suspend credit, the Company reserves the right to suspend the supply of all goods and services whilst ever the Customer is in breach of these Credit Terms. The Company will not be liable for any resulting loss or damage suffered by the Customer.

5 Interest: If any payment is not made by the due date the Company may charge interest on the amount overdue at the Supreme Court Rate plus 2% per annum compounded daily from the date the payment was due until the date payment is received in full.

6 Full Disclosure: The Customer must notify the Company in writing if it becomes aware of any circumstances which may affect the Company’s decision to accept the Credit Application. At all times whilst these Credit Terms apply, the Customer must give the Company any information which may adversely affect the Customer’s ability to comply with these Credit Terms.

7 Terms and Conditions of Trade: The Company’s Terms and Conditions of Trade are attached to these Credit Terms. The Customer agrees that the Terms and Conditions of Trade will apply to the supply of all goods and services by the Company to the Customer (except to the extent expressly agreed in writing with the Company). If any clause of the Terms and Conditions of Trade is inconsistent with these Credit Terms, such clause is deleted or varied to the extent of the inconsistency.

8 Indemnity: The Customer indemnifies the Company against any liability or loss arising from, and any cost, charge and expenses (including legal costs on a full indemnity basis) incurred directly or indirectly by the Company in connection with any breach by the Customer of these Credit Terms or a guarantor’s breach of the Guarantee and Indemnity, given pursuant to clause 11.

9 Security:. As security for payment to the Company of all monies payable by the Customer, the Customer as beneficial owner charges by way of fixed charge in the Company’s favour all of the Customer’s estate and interest in freehold and leasehold property, both current and later acquired. The Company agrees to release such fixed charges at the Customer’s request on payment of all of the monies owed by the Customer.

If requested by the Company, the Customer must give any other form of security in the form reasonably required by the Company.

10 Amendments to Credit Terms: The Company may amend these Credit Terms by notifying the Customer in writing, either by email or facsimile, by ordinary post forwarded to the Customer's address as set out in the Credit Application (or such other address notified to the Company). The amendments to the Credit Terms come into effect 1 Business Day after the Company’s notice to the Customer.

11 Personal Guarantee: If the Customer is a corporation, each director of the corporation must give the Company a personal Guarantee and Indemnity in the form attached to the Credit Application. The Customer must also notify the Company of any change in its directors and if requested by the Company, ensure that any new directors also give a personal Guarantee and Indemnity in the form attached to the Credit Application.

12 Joint and Several Liability: Where any party comprises more than one person any covenants, agreement or obligation undertaken, or benefits received by virtue of these Credit Terms, is undertaken or received by all of them jointly and each of them severally.

13 Consent to the Company obtaining a Credit Report: If the Company considers it relevant in assessing the Customer’s application for commercial credit or for collecting overdue payments, the Customer agrees to:

(a) the Company obtaining a credit report containing personal credit information about the Customer in relation to the commercial credit provided by the Company, from a credit reporting agency; and

(b) the Company obtaining a credit report containing personal credit information about the Customer from other credit providers of the Customer including the trade references in the Credit Application.

14 Assignment: The Company can assign its right under these Credit Terms without the consent of the Customer

15 Power of Attorney: For the purpose of giving effect to the Customer's obligations under these Credit Terms (in particular clause 9) the Customer hereby irrevocably appoints the Company and each of its directors for the time being as the Customer's attorney (with power to appoint substitute attorneys) in all things including without limitation, executing and registering any charge and/or mortgage of all or any of the property referred to in clause 9.

16 Definitions: In these Credit Terms the following terms have the following meanings:

“Business Day” means a day which banks are generally open for business in Sydney;

“Company” means Twojays Engineering & Fabrication Pty Ltd ACN 141 247 770 or such other member of the Twojays Group whose details are set out at the top of the Credit Application to which these Credit Terms are attached;

“Supreme Court Rate” means the interest rate payable in respect of a judgement debt under the Uniform Civil Procedure Rules (2005) (NSW) or its equivalent; and

“Twojays Group” means any company which is, or becomes, a related body corporate (as that term is defined in the Corporations Act 2001) of Twojays Engineering & Fabrication Pty Ltd ACN 141 247 770.

TWOJAYS GROUP TERMS AND CONDITIONS OF TRADE

Interpretation

1. In these Conditions, capitalised words are defined in the Appendix to these Conditions (refer to last page).

Terms of Sale

2. All goods and all other services supplied by the Company are sold on these Conditions.

3. These Conditions (which may only be waived or varied in writing signed by the Company) will prevail over all conditions of the Customer’s purchase order, to the extent of any inconsistency.

Company’s Quotations, Catalogues, Price Lists etc

4. Unless previously withdrawn, the Company’s written quotations are open for acceptance within the period stated in the quotation or, when no period is so stated, within 30 days only after its date. The Company reserves the right to refuse any purchase order, based on a quotation, within 7 days after the receipt of the Customer’s purchase order.

5. The Customer acknowledges that all particulars of size and dimensions on which the price is based are estimates only and the price is calculated based on these estimates. If there are any adjustments in quantities above or below the estimates used to determine the price, then the Company may adjust the price on a unit rate basis according to the unit prices used to calculate the price.

6. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods and services.

Rise and Fall

7. Prices quoted, or incorporated in a purchase order or acceptance of order form, are those the Company applies at the relevant time. These prices are based on the cost of materials, packaging, costs, insurance, sorting and stacking charges, cartage and other carrier charges, rate of wares, applicable taxes and duties and other charges affecting the cost of production at the relevant date and any variations to those underlying costs at any time will be to the Customer’s account.

Orders

8. The Customer may order goods and services from the Company by giving a purchase order to the Company in a form acceptable to the Company, in its discretion. A purchase order will constitute an offer by the Customer to purchase the goods and services described in the purchase order for the prices on these Conditions. The Company may accept this offer by sending the Customer an acceptance of order form or by otherwise notifying the Customer that the purchase order is accepted. Once a purchase order has been accepted by the Company, the Customer cannot cancel it or withdraw it without the Company’s written consent.

Variations to Scope of Work and Price

9. Any variations to the scope of goods and services and consequential amendments to the price must be approved in writing by the Company. The Customer is bound by any variation approved in writing by the Customer or its employees, contractors and agents. A variation form signed by the Customer (or its employees, contractors and agents) is conclusive evidence the Customer has agreed to the variation.

Description of Goods Sold

10. All goods and services to be supplied by the Company shall be as described in the Company’s acceptance of order form (or other confirmation that the Customer’s purchase order is accepted) and that description of the goods and services will prevail over all other descriptions including the Customer’s purchase order.

Payment for Goods in Storage

11. Notwithstanding anything inconsistent in these Conditions, the Credit Terms or any other document, the Customer must pay for goods procured and held in storage by the Company on the Company’s demand.

Loss or damage in transit

12. The Company is not responsible for any loss or damage to goods in transit and the Customer releases the Company from liability in respect of loss or damage to goods in transit, howsoever caused.

Delivery

13. The delivery times made known to the Customer are estimates only and the Company will not be liable for late delivery or non-delivery and under no circumstances will the Company be liable for any loss, damage, delay, cost or expense occasioned to the Customers or any third parties arising from late or non-delivery or late installation of the goods or services.

Retention of Title

14. Risk in the goods passes to the Customer from the time the goods are dispatched to the Customer. Goods are dispatched to the Customer when they leave the location where they are being stored for the purpose of delivery to the Customer. Title in the goods does not pass to the Customer until the Customer has paid the price for the products o the Company in full. Until title passes to the Customer, the Customer must:

(a) store the goods which have not been paid for, in a safe manner, in accordance with the Company’s instructions and in a manner which makes it clear that the goods are the property of the Company;

(b) insure the goods against loss, damage or destruction, keep the goods clearly identifiable and not grant any charge, bill of sale, mortgage or other encumbrance over the goods; and

(c) keep the goods as bailee and fiduciary of the Company in a manner that clearly shows the Company retains ownership of the goods and, if the Customer sells the goods, keep the proceeds of sale in a separate bank account and give a full account to the Company in respect of the proceeds of sale in accordance with the Customer’s fiduciary obligations to the Company.

If the Customer does not pay for the goods in accordance with these Conditions, the Company is irrevocably authorised by the Customer to enter the premises where unpaid goods are stored and use reasonable force to take possession of the goods. The Customer releases and indemnifies the Company and its employees and agents against any liability, loss, cost, claim charges or expenses which the Customer may suffer or incur arising from the exercise of powers under this clause.

Performance

15. Any performance figures given by the Company are estimates only. The Company shall be under no liability for damages for failure to attain such figures.

Prices

16. The Customer agrees to pay the Company the price for the relevant goods and services specified in the Company’s invoice. The Customer must also reimburse the Company for any costs incurred by the Company in connection with supplying the goods or services to the Customer including, for example, the cost of packaging, freight, insurance and any applicable taxes, imposts or duties as specified on the Company’s invoice.

17. Unless otherwise stated, all prices quoted by the Company are exclusive of GST. The Customer must pay the Company the full amount of GST on any taxable supplies made to the Customer. In respect of any such payment, the Company will provide the Customer with a tax invoice to enable the Customer to provide an input tax credit.

Payment

18. The Customer must pay for the goods in cash or other immediately available funds in accordance with the Credit Terms.

Shortage

19. The Customer waives any claim for shortage of any goods delivered or incorrect charges if a claim for the relevant shortage has not been lodged with the Company within seven (7) days from the date of receipt of goods by the Customer. If no such claim is made within that time, the Customer is deemed to have accepted that the goods have been correctly charged and delivered.

The Company’s Liability

20.

(a) If goods are not manufactured by the Company the guarantee of the manufacturer (if any) will be accepted by the Customer and is the only guarantee given to the Customer in respect of the goods.

(b) To the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded by the Company.

21. Where the Company’s liability for a breach of a condition or warranty implied by the Trade Practices Act 1974 cannot be excluded, the Company’s liability is limited to:

(1) in the case of goods, any one or more of the following:

(a) the replacement of the goods or the supply of equivalent goods;

(b) the repair of the goods;

(d) the payment of the cost of having the goods repaired; or

(2) in the case of services:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

The Customer’s Liability

22. The Customer releases the Company from all claims, demands, loss or damage that the Customer suffers directly or indirectly in connection with these Conditions or the goods or services (however caused).

23. The Company will not be liable to the Customer for any special, indirect, consequential or economic loss or damage of any nature.

24. The Customer is liable for, and indemnifies the Company, against any liability or loss arising from, and any cost, charge and expense (including legal costs on a full indemnity basis) incurred directly or indirectly by the Customer in connection with any of the following:

(a) the Customer’s breach of these Conditions;

(b) the acts or omissions of the Customer and its employees, contractors and agents in connection with these Conditions; and

(c) any claim against the Company by any third party, including the Customer’s customers, employees, contractors or agents in connection with the goods.

25. The above release and indemnity survives termination of these Conditions.

Customer’s Property

26. Any property of the Customer under the Company’s custody or control shall be entirely at the Customer’s risk as regards loss or damage caused to the property or by it.

Returned Goods

27. The Company shall not be under any obligation to accept goods returned by the Customer.

General

28. These Conditions cannot be varied without the Company’s written consent.

29. These Conditions are governed by the law of New South Wales, Australia. The parties submit to the non exclusive jurisdiction of the courts of New South Wales, Australia and any court hearing appeals from those courts.

30. Neither party will be liable for any delay or failure to perform its obligations under these Conditions where such delay is due to Force Majeure.

31. The Company can assign its rights under these Conditions without the consent of the Customer.

Appendix

In these Conditions, the following terms have the following meanings:

“Company” means Twojays Engineering & Fabrication Pty Ltd ACN 141 247 770 or such other member of the Twojays Group whose details are set out on the invoice to the Customer for the relevant goods or services supplied.

“Customer” means a person whose purchase order is accepted by the Company.

“Force Majeure” means an act, event or cause which is beyond the reasonable control of the Company or the Customer, including acts of God, lightning strike, earthquake, flood, storms, explosions, fires and any natural disaster, acts of war, terrorism, riots, malicious damage, sabotage and strikes.