Terms & Conditions

TERMS AND CONDITIONS OF SALE  

These Terms and Conditions apply to all supplies of goods or services by Fulton Industries Australia Pty Ltd (Fulton). 

The goods and other requirements of supply will be set out in a purchase order, online purchase request, or any other form of order submitted to Fulton by a Purchaser.

By ordering goods and services from Fulton, the Purchaser acknowledges and agrees that:

1. These Terms and Conditions are the entire agreement between Fulton and the Purchaser, and supersede all prior discussions and arrangements; 

2. These Terms and Conditions prevail over any prior discussions, arrangements, or agreements between Fulton and the Purchaser; 

3. No purchase order or other document issued by the Purchaser will vary these terms and conditions; and 

4. Any amendments to these Terms and Conditions must be expressly agreed in writing to be valid and enforceable. 

1. Application of Terms and Conditions  

(a) Any order or offer made by the Purchaser for goods and/or services may be accepted or refused by Fulton at its sole discretion. 

(b) A tender or quotation submitted by Fulton in respect of the supply of goods and/or services may at any time prior to acceptance of an offer by Fulton be varied or withdrawn by Fulton. 

(c) Any quotation or tender submitted by Fulton shall remain valid for 30 days from the date of such quotation or tender, unless stated otherwise. 

(d) Orders cannot be cancelled except by arrangement and agreement by Fulton in writing. 

2. Price 

(a) Unless stated otherwise, the prices quoted by Fulton for the supply of goods and/or services do not include goods and services tax (GST). The purchaser must pay GST (where required by legislation), without deduction or set off of any other amount, at the same time as paying the price. 

(b) Unless otherwise stipulated all references to dollars are references to the lawful currency of Australia. 

(c) The prices quoted by Fulton include the cost of packing the goods in accordance with Fulton’s standard practice. If the Purchaser requires the goods to be provided in any other manner, and Fulton agrees to provide this additional service, the cost of the packing shall be the responsibility of the Purchaser. Fulton will not be liable for any damage or loss occurring as a result of goods being packed in accordance with the Purchaser’s instructions.  

3. Payment 

(a) The Purchaser will be invoiced after the purchase order is accepted by Fulton. 

(b) All invoices issued by Fulton are due and payable within 30 days from the end of the month that the invoice is issued in (Due Date), unless agreed otherwise in writing by Fulton. 

(c) If the Purchaser does not pay in full by the Due Date, Fulton may charge interest on the amount owed calculated monthly on the outstanding amount at the rate of the maximum per annum Reference Lending Rate published by the Commonwealth Bank of Australia plus 2% from the Due Date until the amount is paid in full. Payments received by Fulton shall be credited first against any interest accrued. 

(d) The Purchaser cannot set off or deduct from the amount payable to Fulton any amount under this Agreement.

(e) The Purchaser shall pay Fulton all expenses and costs (including debt collection agency fees and solicitors costs on an indemnity basis) which may be incurred in the recovery of any overdue amounts from the purchaser. 

4. Delivery 

(a) Unless otherwise agreed in writing, the Purchaser will be responsible for the costs of delivery. 

(b) Fulton will deliver goods to the address nominated by the Purchaser for delivery, provided that the address is reasonably accessible. 

(c) Fulton will not be responsible for unloading goods at the point of delivery. 

(d) The Purchaser undertakes to provide adequate and proper facilities for the reception and storage of goods and warrants that those facilities comply with all relevant statutes or regulations, including health and safety regulations, and that all necessary permits and licenses have been obtained. 

(e) Where goods are delivered to a nominated address, Fulton will be deemed to have delivered the goods in accordance with the Agreement if it obtains a receipt or signed delivery docket for the goods from any person at that address. 

(f) If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be despatched due to any act, matter or thing beyond the control of Fulton, Fulton in its sole discretion may store the goods at the purchaser’s risk and expense or take such other steps as it considers appropriate in the circumstance. 

(g) If the Purchaser requests that Fulton leaves the goods at a nominated delivery address that is unattended, Fulton will not be responsible for any loss or damage that occurs to the goods as a result. 

(h) If Fulton is required to carry out additional services, or otherwise incurs additional costs, as a result of the Purchaser’s failure to comply with this clause 4, the Purchaser agrees to compensate Fulton for those additional services or costs on demand.  

(i) Fulton reserves the right to refuse to supply goods and/or services if the Purchaser is in default of any of its payment obligations to Fulton. 

(j) Fulton reserves the right to supply or deliver by instalments, and each instalment will be deemed to be sold under a separate contract. Failure to supply or deliver any instalment will not entitle the Customer to repudiate any order. 

(k) The Company shall use its reasonable endeavours to make the ordered Goods available for collection, or to deliver the ordered Goods to the Customer, on the anticipated delivery date. The Company makes no warranty that it will make the ordered Goods available for collection, or deliver the ordered Goods to the Customer, by the anticipated delivery date and the Company shall not be liable in relation to same. For the avoidance of doubt, Fulton is not liable for any claims or loss (whether direct or consequential) that may arise from delays in delivery. 

(l) Upon request of Fulton, the Customer must return any pallets or cable drums used for the delivery of the Goods to any of the Company’s or its agent’s warehouses, stores, factories or offices at the Customer’s expense. Any pallets or cable drums not returned within 14 days after request are to be paid in full by the Customer to the Fulton on demand at a valuation reasonably determined by Fulton. 

(m) The risk of loss or damage to goods will pass to the Purchaser at the time of delivery. Fulton is not liable to the Purchaser for any loss or damage or deterioration of the goods after delivery, except where warranties under the Australian Consumer Law (ACL) apply. 

 5. Claims 

(a) The Purchaser may have rights against Fulton if the goods and/or services supplied by Fulton fail to meet a consumer guarantee under the ACL. This may include the right to a repair, replacement or refund. To the extent permitted by the ACL, Fulton’s liability for any such loss or damage will be limited to, at Fulton’s election, the replacement or repair of goods or the cost of such goods to be replaced or repaired. 

(b) The Purchaser must notify Fulton in writing within 7 days of delivery if the goods delivered to the purchaser do not match the order, or if the Purchaser is not satisfied with the quality of the goods. 

(c) The Purchaser must notify Fulton immediately in writing upon discovering any defect in the goods received, and provide sufficient details so that Fulton can investigate the claimed defect. 

(d) The Purchaser may not be entitled to a refund or replacement under the ACL if the goods are not rejected within a reasonable period, the purchaser has lost, destroyed or disposed of the goods, or the goods have been damaged after delivery. 

(e) If Fulton, acting reasonably, determines that the claimed defect has arisen as a result of the Purchaser’s incorrect use of the goods, or is damage caused by the Purchaser, then Fulton may reject the defect claim. Otherwise, Fulton will provide a repair, replacement or refund in accordance with clause 5(a) of these Terms and Conditions. 

(f) Goods may only be returned for change of mind credit with the written agreement of Fulton, which may be withheld at its absolute discretion. Without limiting its rights to refuse a credit, Fulton will require that goods are returned within 30 days from the date of the original invoice and the return freight must be prepaid by the purchaser. 

(g) All goods returned for credit must be in their original packaging and in a re-saleable condition. 

(h) Fulton reserves the right to charge a minimum 25% restocking fee on goods accepted for credit as a condition precedent to agreeing to provide a credit. 

(i) Goods specifically ordered, manufactured or marked as “Non-Returnable” by Fulton for the purchaser will not be accepted for credit. 

(j) Cable specifically cut by Fulton or Fulton’s supplier for the Purchaser will not be accepted for credit. 

(k) A “Request for Goods Returns Authority”(GRA) in the form specified by Fulton from time to time must be completed returned to Fulton and approved prior to any goods being returned. The GRA must accompany the goods when being returned. 

6. Warranty and Liability 

(a) To the fullest extent permitted by law, and acknowledging that the Purchaser has rights under the Australian Consumer Law and other laws that cannot be contracted out of, Fulton excludes: 

            (i) any term, condition or warranty that may otherwise be implied into these Terms and Conditions; 

          (ii) any liability for loss or damage incurred as a result of or in connection with the actions of Fulton; and 

          (iii) any liability for consequential loss. 

(b) The Purchaser agrees that Fulton's liability for any cost, expense, loss or damage suffered or incurred by the Purchaser in connection with these terms and conditions, however arising, will be limited to: 

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

(ii) the repair of the goods; 

(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; (iv) the payment of the cost of having the goods repaired; or  

(iv) in the case of services, the resupply, or the payment of the cost of resupply, of the services.  

(c) The Purchaser confirms that: 

(i) it has not relied upon any statement made by or on behalf of Fulton which has not been expressly included in these terms and conditions; and 

(ii) it has made its own assessment of the suitability of the goods or services for the intended purposes. 

7. Passing of Title and PPSA 

(a) Notwithstanding that the purchaser has possession of the goods, title to the goods remain with Fulton, and no legal or equitable interest in the goods whatsoever will pass to the purchaser, until the full amount for the goods has been paid. 

(b) Until title passes to the purchaser, the purchaser holds the goods on Fulton’s behalf as bailee and acknowledges that a fiduciary relationship exists between Fulton and the purchaser. 

(c) The purchaser may dispose of the goods to a bona fide sub purchaser provided that such disposals are in the ordinary course of the purchaser’s business and that the purchaser assigns to Fulton (the assignment being absolute and not by way of security) all monetary proceeds received by or on behalf of the purchaser in respect to the goods. 

(d) The purchaser agrees that: 

(i) it holds the proceeds of re-supply of all goods on trust for and as agent for Fulton 

(ii) it must maintain records of all disposals of the goods and must permit inspection of these records by Fulton promptly upon request, and  

(iii) it will indemnify Fulton against any claim, action, damage, loss, liability, cost, expense that Fulton suffers, incurs or is liable for in respect of Fulton’s exercise of its rights under this clause 7. 

(e) The Purchaser acknowledges that these Terms and Conditions create a security interest in all goods supplied to the Personal Property Securities Act 2009 (CTH) (“PPSA”), and that Fulton may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the Purchaser in accordance with the provisions of the PPSA. 

(f) The Purchaser shall provide all information, execution or arrange for execution of all documents and do all other things that Fulton may require, to ensure that Fulton has a perfected first ranking security interest in the goods under the PPSA. 

(g) The Purchaser waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of Fulton under the PPSA to the extent permitted by the PPSA. 

(h) Until the Purchaser has made full payment for goods, it shall not without the prior written consent of Fulton, create a security interest in the goods or the sale proceeds of the goods to any third party or permit any lien over the goods or the sale proceeds of the goods. 

8. Drawings, Documentation and Information 

9. Termination 

(a) Fulton may terminate any subsisting purchase orders, and refuse to accept any further orders from the Purchaser without further notice if the Purchaser: 

(i) is in breach of any provision of these terms and conditions, and fails to remedy the breach within 14 days’ notice in writing by Fulton specifying the breach and requiring the Purchaser to remedy it; 

(ii) has failed or refused to take delivery of goods and/or services, the subject of the terms and condition, and such failure or refusal continues for a period of 14 days after Fulton has notified the Purchaser that the goods and/or services are ready for delivery, dispatch or supply, as the case may be; or 

(iii) is declared bankrupt, resolves to go into voluntary administration or liquidation or has a petition for bankruptcy or winding up presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, administrator, receiver or official manager is appointed in respect of the Purchaser or if anything analogous occurs in respect of the Purchaser. 

(b) The Purchaser must indemnify Fulton for any loss or damage Fulton suffers or incurs due to the Purchaser’s act or omissions, including but not limited to any costs and expenditure incurred due to the termination of subsisting purchase orders.

10. Intellectual Property 

(a) The supply of goods or services to the Purchaser does not constitute a transfer of any intellectual property rights in the goods or services of any part thereof. The Purchaser shall not do anything inconsistent with or in infringement of such intellectual property rights including but not limited to the de-compilation, disassembly and re- engineering thereof. 

(b) Where Fulton or its contract manufacturer provides the goods or services to the Purchaser’s design and specifications, the Purchaser agrees to indemnify and keep indemnified Fulton and its related corporations against all actions, claims, loss, damages, costs and fines that Fulton and/or its related corporations may incur or suffer as a result of a claim by a third party that the manufacture and sale by Fulton of the goods or any part thereof or the provision of the services infringes any intellectual property right of such third party.

11. Force Majeure 

Should Fulton be delayed, hindered, or otherwise prevented from complying with the terms of this Agreement by reason of events or circumstances beyond the reasonable control of Fulton including but not limited to Acts of God, wars, riots, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services, then Fulton shall not be liable to the Purchaser for any loss or damage which may be suffered by the Purchaser whether as a direct or indirect result of any such occurrences. 

12. Law and Jurisdiction 

This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia and parties agree to submit to the exclusive jurisdiction of the courts of New South Wales.