Blue Singlet Pty Ltd T/A Rackman Australia
GENERAL TERMS AND CONDITIONS OF SALE

Interpretation

1.    In these conditions:
(a)    “Credit Note” means a credit, payment or otherwise made by the Seller to the Purchaser in relation to a prior sale of Goods.
(b)    “Goods” means the products identified.
(c)    “Purchase Price” means the price as indicated on the face of the Seller’s invoice.
(d)    “Purchaser” means the entity purchasing the Goods upon these terms and conditions as described in any Quotation or order form.
(e)    “Quotation” means the Seller’s quotation to the Purchaser whether in writing or verbally.
(f)    “Seller” means Rackman Australia, 11-13 Colin Jamieson Drive, Welshpool, Western Australia, 6106.
(g)    Blue Singlet Pty Ltd T/A Rackman Australia hereafter referred to as Rackman Australia.

Acceptance

2.    This quotation is valid and open for acceptance for one calendar week from the date of issue, or any extension agreed in writing by us. The quotation will lapse either at the end of that time, or upon revocation prior to acceptance if written acceptance is not received by us within such time. Acceptance must be accompanied by sufficient information to enable us to proceed with manufacture and supply immediately. Unless otherwise agreed in writing, acceptance of our quotation, tender or list price includes acceptance of these terms and conditions.

Binding Terms and Conditions

3.    The only terms which are binding upon the Seller are:
(a)    those set out in these terms and conditions or otherwise agreed to in writing by the Seller; and
(b)    those, if any, which are imposed by law, and which cannot be excluded.

Contract and Cancellation

4.    If:
(a)    the Purchaser accepts the Seller’s Quotation (where the Quotation is in writing, by executing it); or
(b)    the Seller accepts the Purchaser’s Order, a contract is created between the parties whereby the Seller sells to the Purchaser the Goods on these terms and conditions.
5.    After creation of the contract the order for the Goods can only be cancelled by the Purchaser if the Seller consents to the cancellation and the Purchaser reimburses the Seller for all costs associated with the work undertaken in relation to the contract and pays the Seller an amount equivalent to the profits which the Seller would have achieved had the contract been completed. The Seller’s calculation of such amounts shall be binding on the Purchaser.
6.    If the Seller, at any time including after creation of the contract, considers the credit of the Purchaser unsatisfactory the Seller may:
(a) require security for payment of the Purchase Price. (b) Withhold delivery until such security is received, and/or (c) cancel the contract.
7.    These conditions (which shall only be waived in writing signed by the Seller) shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistency.

Supply and Delivery

8.    The delivery time made known to the Purchaser is an estimate only and the Seller shall not be liable for late delivery or non-delivery including any loss, damage or delay occasioned to the Purchaser or its customers arising from late or non-delivery.
9.    The goods shall be deemed to have been absolutely accepted by the purchaser on the date when delivery has been made ex-works or to an address in accordance with purchaser’s delivery instructions, unless we receive written notification of defects with sufficient and valid reasons within 7 days of the delivery date. For the purposes of this clause no account shall be taken of additions, minor omissions or defects which do not materially affect the commercial use of goods.
10.    The Seller is not responsible for any loss or damage to the Goods in transit. The Seller shall render to the Purchaser such assistance as may be necessary to make claims on carriers provided the Purchaser notified the Seller and the carriers in writing immediately, such loss or damage is discovered.
11.    At our option, we may supply surplus materials as a precaution against damage or loss. On completion of the contract any surplus materials will remain the property of Rackman Australia and will be promptly removed from site.
12.    The provision of labour and a suitable forklift for the unloading of our materials and handling on to the erection site and/or covered storage area is the responsibility of the purchaser, unless otherwise agreed in writing. Any charges arising from delays in unloading, for which we are not responsible, will be to the purchaser’s account.
13.    Where our materials are stored on site for any reason whatever between the time of delivery and the start of installation, the care and protection of such materials is the sole responsibility of the purchaser. Where the storage is at a location remote from the installation site, transfer of our materials to site is the responsibility of the purchaser. Charges arising out of delays in installation due to materials not being on site will be in the purchaser’s account.

Packing

14.    If the Purchaser requires special packaging in relation to the Goods it must be agreed to in writing between the Purchaser and the Seller, and the cost of the same is to the Purchaser’s account and accordingly will be included in the Purchase Price. If the Seller fails to include the cost of special packing in the Purchase Price, the Purchaser must pay to the Seller such costs on demand.
Installation
15.    Where installation is included in the contract the provision of a clear working site and adequate access will be the responsibility of the purchaser. It is our normal practice to notify delivery in advance to facilitate the clearance of our working area. We reserve the right to inspect the working area, and to delay moving on to site at no penalty to the Seller if inadequate access or facilities exist
16.    Installation work will require a reasonable standard of lighting and access to power supply within 30 metres of the work area. In the case of structures which require site welding a three-phase supply with sole access and adequately maintained voltage is also the responsibility of the purchaser. We will be happy to discuss any difficulties in the provision of these requirements and make alternative provisions, if necessary, but unless otherwise agreed in writing, any additional costs will be in the purchaser’s account.
17.    It is normal procedure to bolt racking structures to the floor, and unless otherwise, our quotation makes allowance for this. However, if the floor slab is reinforced with grid steel mesh or similar materials to a level less than 110 mm below the surface, special drilling equipment will be required, and any additional costs incurred will be to the purchaser’s account.
18.    Unless stated in writing our quotation assumes a reasonable condition of flatness of the floor. Flatness tolerances should be within + 3 mm inside a 3-metre radius. Additional costs incurred in compensating for a faulty or uneven floor will be in the purchaser’s account.

Subcontracts

19.    We reserve the right to assign or subcontract out the whole or any part of this contract at our discretion.
Completion
Any times quoted for our completion or delivery are effective from the date of receipt by us of a written order to proceed, together with all information and particulars we require to proceed with the manufacture without interruption or delay. All such times are to be treated as estimates only and we shall not be liable for failure to dispatch, install, or otherwise perform within such times unless otherwise agreed in writing. In all cases, times for our performance shall be extended by reasonable periods for delays caused by the purchaser, or by any other cause whatsoever beyond our reasonable control.

Price and Payment

20.    The Purchaser shall pay the Seller the Purchase price within 7 days from the date of the invoice or as per agreed terms. If the Purchaser fails to make a payment by the due date, the Seller may, without notice, withhold delivery of any further Goods to the Purchaser and may terminate, without liability to the Purchaser, any or all subsisting contracts between the Seller and the Purchaser.
21.    If payment is not made on the due date, the Seller may charge interest on the amount payable at the rate of 5% over the 90-day bank bill rate applicable on the day the payment is due.
22.    The Purchase Price is not inclusive of goods and services tax, unless otherwise specified in writing. Goods and services tax is additional to the Purchase Price and must be paid by the Purchaser.
23.    The Purchaser acknowledges that the price stated in or during the time of Quotation is an estimate based on rates of freight, insurance, customs duty, exchange rates, costs of materials purchased from overseas, shipping expenses, wage and material costs and other factors at the time the Quotation was prepared. It the Seller considers that it needs to adjust the quoted price considering circumstances which it considers have affected the cost of the Goods, the Seller may adjust the quoted price and such adjustment will be binding on the Purchaser.

Credit Notes

24.    If the Seller issues a Credit Note to the Purchaser (whether on request by the Purchaser, by its own volition or otherwise), the Purchaser agrees that the issue of the Credit Note is an act of commercial good faith by the Seller and not an admission of liability to the Purchaser in relation to any of the matters pertaining to the issue of the Credit Note.

Errors

25.    If the Seller considers the Quotation contains an error, such a miscalculation of the Purchase Price, the Seller may at any time, including after delivery of the Goods, cancel this contract without liability to the Purchaser. If the contract is cancelled after delivery of the Goods, the Purchaser will make the Goods available for collection by the Seller when required by the Seller.
26.    If the Seller considers that the Purchase Price has been miscalculated and elects not the cancel the contract, the Purchaser will pay to the Seller, on demand, the difference between the Purchase Price and the price that would have been the Purchase Price if the error had not been made.
Seller’s rights in relation to the Goods
27.    The Seller reserves the following rights in relation to the Goods until all accounts owed by the Purchaser to the Seller are fully paid:
(a)    legal ownership of the Goods.
(b)    to enter the Purchaser’s premises (or the premises of any associated Company or agent where the Goods are located) without liability for trespass or any resulting damage and to take possession of the Goods; and
(c)    to keep or resell any Goods repossessed pursuant to (b) above.
28.    If the Goods are re-sold, or products manufactured using the Goods are sold by the Purchaser, the Purchaser shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding this clause and clause 28 the Seller shall be entitled to maintain an action against the Purchaser for the Purchase Price and the risk of the Goods shall pass to the Purchaser on delivery.
29.    The Seller’s property in the Goods is not affected by the fact that the Goods become fixtures attached to the premises of the Purchaser or a third party, and if the Seller enters those premises for the purpose of reclaiming possession of the goods and incurs any liability to any person in connection with the entry, the Purchaser indemnifies the Seller against that liability.

Guarantee

30.    Our liability in respect of any defect in, or failure of, the goods supplied, or for any loss, injury or damage attributable to such defect or failure, is limited to making good the defect or failure at our own cost. Our guarantee period is 12 months from the date of acceptance of the goods and is only valid for defects or failures under proper use and which arise solely from faulty design, materials or workmanship. In the case of goods not of our manufacture, the purchaser is entitled only to such benefits as we may receive under any guarantee given to us in respect of such goods. Without limiting the generality of the forgoing, we shall be under no liability whatsoever for any consequential loss or damage suffered by the purchaser.

Claims by the Purchaser

31.    Except as provided in clause 35, all express and implied warranties, guarantees and conditions under statute or general law as to:
(a)    merchantability, description, quality, suitability or fitness of the Goods for any purpose; or
(b)    design, assembly, installation, materials or workmanship; or
(c)    advice, recommendations, information or services provided by the Seller, its employees, servants or agents to the Purchaser regarding the Goods, their use and application, are expressly excluded.
32.    The Seller shall not be liable to the Purchaser for physical or financial injury, loss or damage or consequential loss or damage of any kind arising out of or in relation to the Goods including loss or damage arising because of:
(a)    the Seller’s or the Seller’s agents or employee’s negligence.
(b)    the supply, layout, assembly, installation, or operation of the Goods; or
(c)    the advice, recommendations, information or services provided by the Seller or the Seller’s agents or employees. or in any way whatsoever.
33.    If the Goods are defective, the Seller shall make good the defect by doing any one of the following at its option:
(a)    repairing the Goods; or
(b)    replacing the Goods; or
(c)    taking the goods back and crediting the Purchaser with the Purchase Price if it has been Paid. 
The Seller does not have to do any of these things until all the following conditions have been met:
(a)    the Purchaser has given the Seller written notice that the Goods are defective within 7 days after the Goods were delivered to the Purchaser; and (b) the Goods are in the same condition that they were in when they were delivered to the Purchaser (this means that if the Goods were processed into other goods or were maltreated, interfered with or destroyed or damaged, the Seller is not obliged to do anything under this clause); and
(b) if the Seller wants the defective Goods to be returned to it, the Purchaser immediately returns them; and
(c) if the Seller does not want the defective Goods to be returned to it, the Purchaser immediately makes the goods available for inspection by the Seller or by someone on its behalf.
   If the Seller is liable for a breach of a condition or warranty implied by Division 2 of Part V of the Trade Practices Act 1974 (other than          Section 69) – covered in latest version C2024C00199(C152) such liability is hereby limited to:
a.    the replacement of the Goods or supply of equivalent Goods, or
b.    the repair of the Goods.
c.    the payment of the cost of replacing the Goods or acquiring equivalent Goods.
d.    the payment of the cost of having the Goods repaired. 
e.    (e) the re-assembly or re-installation of the Goods; or
f.   The re-supply of the advice or services provided by the Seller or the Seller’s agents or employees in connection with the Goods.
g.    The Purchaser must not return any Goods which the Purchaser claims are not in accordance with the contract or Quotation unless the Seller has first given its (written) approval to their return. Their return must then be with freight and cartage prepaid by the Purchaser.

Copyright

34.    All descriptions, illustrations, particulars of weights and dimensions contained in our catalogues, price lists and other advertising matter, are intended merely to give an indication of the goods described therein and none of these shall form part of the contract unless specifically agreed in writing. All drawings and specifications prepared by us shall remain our property and all copyright therein shall belong entirely to us.

Imprints

35.    Where our patents, registered designs or copyright features are embodied in the design of the goods, an imprint to that effect may be affixed and it must not be defaced, obliterated or removed from the goods. Unless otherwise agreed we shall be entitled to write or affix our name or trade plate on the goods.

Patents, Designs

36.    If the Seller has followed a design or instructions given by the Purchaser, the Purchaser shall indemnify the Seller against all damages, penalties, costs and expenses of the Seller arising from any infringement of a patent, trademark, registered design, copyright or common law right. The Purchaser on its part warrants that any design or instruction given by it will not cause the Seller to infringe any patent, registered design, trademark, copyright or common law right. Force Majeure
37.    Contracts and deliveries may be suspended in the event of any strike, lock out, trade dispute, fire, tempest, breakdown, accident, riot, theft, crime, civil disturbance, war, or other force majeure, or other occurrence or cause beyond our control preventing or delaying the execution or performance of any contract, and no responsibility shall attach to us for any default, loss, damage or delay due to any of the forgoing causes.

Exclusion of Conditions

38.    No conditions, terms, covenants, warranties and guarantees whatsoever on our part whether expressed or implied shall form part of this contract unless expressly set forth in these in these conditions of sale or otherwise agreed by us in writing and unless expressly agreed by us in writing no provision for liquidated damages shall form part of the contract.

Australian Law

39.    This contract is governed by Australian Law and all litigation in relation There to shall be brought in the Court of appropriate jurisdiction in Australia.

Permits and Approvals

40.    Unless specified elsewhere it is the purchaser’s responsibility to obtain any permits and approvals. Where any costs are incurred to obtain such approvals, these will be in the purchaser’s account.

Statutes

41.    We shall be relieved of our liability or responsibility of performance of this contract wherever and to the extent to which fulfilment of the same is prevented, frustrated or hindered because of any statute, rule, regulation, order in council or by-law or requisition order or ruling made there under.

Personal Property Securities Act 2009 (“PPSA”) 45 as per latest version F2022C00632 (C06) 1st July 2022.

45.1    In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
45.2    Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by RACKMAN AUSTRALIA to the Customer.
45.3    The Customer undertakes to:
(a)    promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which RACKMAN AUSTRALIA may reasonably require to.
(i)    register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register.
(ii)    register any other document required to be registered by the PPSA; or
(iii)    correct a defect in a statement referred to in clause 45.3(a)(i) or 45.3(a)(ii).
(b)    indemnify, and upon demand reimburse, RACKMAN AUSTRALIA for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby.
(c)    not register a financing change statement in respect of a security interest without the prior written consent of RACKMAN AUSTRALIA.
(d)    not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of RACKMAN AUSTRALIA.
(e)    immediately advise RACKMAN AUSTRALIA of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
45.4    RACKMAN AUSTRALIA and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
45.5    The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
45.6    The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
45.7    Unless otherwise agreed to in writing by RACKMAN AUSTRALIA, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
45.8    The Customer must unconditionally ratify any actions taken by RACKMAN AUSTRALIA under clauses 45.3 to 45.5.
45.9    Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA