Trading Terms & conditions
Standard Terms and conditions of supply
In these standard terms and conditions of supply: “Arcus” refers to Arcus Wire Group Pty Ltd (ABN 25 000 465 163); “Customer” refers to the person, firm or company ordering or buying the Goods or Services from Arcus; “Goods” means all products, including wire rope, fittings, tools, rod systems, balustrades, marine rigging, and any other goods supplied by Arcus to the Customer; and “Services” means any services supplied by Arcus to the Customer.
1. Definitions
In these terms:
Arcus refers to Arcus Wire Group Pty Ltd (ABN 25 000 465 163);
Customer refers to the person, firm or company ordering or buying the Goods from Arcus; and
Goods means all products, including wire rope, fittings, tools, rod systems, balustrades, marine rigging, and any other goods supplied by Arcus to the Customer; and
2. OFFER AND ACCEPTANCE
2.1 Any marketing material, price list, quotation or tender given to the Customer by Arcus is merely an invitation for the Customer to place an order with Arcus. Quotations are valid for 14 days unless otherwise specified.
2.2 Each order placed by the Customer with Arcus does not give rise to a binding commitment until accepted by Arcus. Arcus is not obliged to accept any order from the Customer. Arcus may accept the order by written confirmation or by delivery and in the case of delivery, only as to the portion of the order actually delivered. If an order is accepted, Arcus will carry out the order and the Customer must pay for the Goods in accordance with these terms.
3. APPLICATION OF THESE TERMS
3.1 These terms govern all supplies of Goods by Arcus to the Customer, unless otherwise clearly agreed in writing signed by Arcus and the Customer.
3.2 These terms take precedence and prevail over any terms or conditions set out in any communication or document of the Customer regardless of the date or time of the communication or document, unless otherwise agreed by Arcus in writing.
4. CANCELLATION AND RETURN OF GOODS
4.1 If the Customer wishes to cancel or change all or part of an order after it has been accepted by Arcus, the Customer must put the request in writing. No cancellations or returns will be accepted without prior written agreement from Arcus, which Arcus may provide or withhold in its absolute discretion (such acceptance may include conditions).
4.2 Arcus will not consider a request to cancel an order after dispatch of the Goods to the Customer unless the Customer returns the Goods to Arcus with the original invoice number and upon payment of Arcus’ re-stocking charge of 15% of the invoice price of the returned Goods.
4.3 The Customer acknowledges that Arcus’ re-stocking charge under clause 4.2 is reasonable and represents a genuine pre-estimate of Arcus’ expenses and loss resulting from the Customer’s cancelled order.
4.4 If Arcus initially agrees to accept delivery of any returned Goods this does not mean Arcus is bound to agree with the requested cancellation. Arcus may do such things that are required to check that the Goods are in good order and condition and to ensure it is commercially realistic for Arcus to re-sell them.
4.5 Arcus will not accept the cancellation of any order for, or return of, used or customised Goods or Goods supplied to special order (including orders for cut-lengths of wire or chain) unless those Goods are defective.
4.6 Returned Goods must be returned by way of prepaid freight with the original invoice, in original condition and in the original packaging, at the cost of the Customer.
5. PRICE
5.1 The price payable by the Customer for each of the Goods supplied is the price set out in the quotation or tender given to the Customer by Arcus, or if no quotation or tender is given, then in the price list published by Arcus as at the date the Customer places its order, unless otherwise agreed. Arcus reserves the right to correct any obvious errors in any quotation, tender or price list, whether technical or otherwise.
5.2 Any pricing in a quotation or tender provided by Arcus is valid for 30 days from the date of quotation unless otherwise agreed in writing by Arcus.
5.3 The minimum order value is $75 exclusive of GST.
5.4 Unless otherwise expressly stated in a quotation, tender or price list, all prices for the Goods do not include any sales tax, goods and services tax, stamp duty and other excises and duties that may be imposed in relation to these terms or the supply of the Goods by Arcus to the Customer. Each of these is payable by the Customer and if paid by Arcus, the Customer must reimburse Arcus on demand.
6. PAYMENT AND CREDIT
6.1 Unless the Customer has written approval for credit, all payments must be made by way of electronic funds transfer, credit card or as otherwise agreed between the parties, before the corresponding order is despatched.
6.2 Arcus may give the Customer credit, but it is not obliged to do so, even if Arcus has previously given the Customer credit.
6.3 Credit terms are subject to acceptance of an application for credit and validation of trade references, and are strictly 30 days from invoice end of month. The Customer is bound by these terms as well as any other conditions that Arcus and the Customer agree to in connection with Arcus giving the Customer credit.
6.4 Arcus may decline to give the Customer further credit at any time. If Arcus does so, all amounts that the Customer owes Arcus on any account become immediately payable.
7. LATE PAYMENT
7.1 If any amount that the Customer owes to Arcus is not paid by the due date then:
(a) all amounts the Customer owes to Arcus become immediately payable despite any previously agreed credit terms or conditions;
(b) Arcus may suspend or cancel any undelivered orders to the Customer; and
(c) Arcus may charge the Customer interest on any amount outstanding, commencing on the day after the due date for payment and ending on the date when the payment is received by Arcus. The interest rate charged is to be calculated by adding 5% to the cash rate target specified by the Reserve Bank of Australia on each day the payment is due; and
(d) the Customer must pay all collection costs including but not limited to bank and legal expenses and debt collection commissions incurred in obtaining payment for any amounts owing to Arcus by the Customer.
8. DELIVERY
8.1 Unless otherwise agreed by Arcus in writing, Goods are delivered ex-warehouse.
8.2 Any times quoted for delivery are to be treated as estimates only unless a guarantee in writing has been given by Arcus for the delivery on a specific date.
8.3 Arcus reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 7 days after a request by Arcus for that information.
8.4 In the absence of special cartage instructions or if requested by the Customer, the Goods will be shipped by Arcus’ regular carriers and the cost of delivery and all other associated costs will be charged to the Customer.
9. RISK
9.1 Risk of loss or damage to any Goods supplied to the Customer under a particular order passes to the Customer at the time the Goods are delivered.
10. RETENTION OF TITLE
10.1 Arcus remains the owner of all Goods that Arcus supplies to the Customer or on behalf of the Customer until the Customer has paid all amounts in respect of all Goods which are owing to Arcus by the Customer.
10.2 Until the Customer becomes the owner of the Goods in accordance with clause 10.1:
(a) the Customer holds the Goods as bailee;
(b) the Customer must store the Goods on the Customer’s premises separately from the Customer’s own goods or goods of any other person and in a manner which makes them readily identifiable as Arcus’ Goods; and
(c) Arcus’ employees or agents may enter any premises where the Goods are situated, or where Arcus reasonably believes them to be situated, and retake possession of the Goods, if the Customer defaults in paying any part of the price or associated charges for them or the Customer becomes or resolves to become subject to any form of insolvency or administration.
10.3 The Customer may re-supply the Goods to any person or entity before the Customer has paid all amounts which are owing to Arcus provided that:
(a) the re-supply is in the ordinary course of the Customer’s business;
(b) all money received by the Customer for the Goods will be held by the Customer on trust for Arcus; and
(c) the Customer must either:
(i) pay the money immediately when it is received by the Customer; or
(ii) deposit the money into a bank account and hold it as trustee for Arcus.
10.4 The Customer’s permission to enter premises under clause 10.2(c) is irrevocable and the Customer agrees that Arcus’ employees or agents may enter those premises at any reasonable time after default of payment by the Customer or before default if Arcus reasonably believes a default is likely.
10.5 Arcus will not be liable, in contract or in tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken under this clause 10, except where any costs, damages, expenses or losses arise as a result of Arcus’ negligence.
11. SALE BY SPECIFICATION
11.1 The Customer must ensure that the Goods are suitable for the purposes intended before using the Goods for those purposes. Except to the extent expressly specified by Arcus in writing, Arcus sells the Goods by specification and the Customer decides for what purpose to use or re-supply the Goods. To the extent Arcus expressly specifies in writing a purpose for which the Goods are suitable, Arcus sells the Goods for use only as specified for that purpose. Arcus is not liable for any loss or damage caused by persons seeking to fit unsuitable Goods.
11.2 Arcus reserves the right to vary the specifications or performance criteria of any Goods from time to time and to obtain Goods from different sources, at Arcus’ absolute discretion. Arcus may do so without notifying the Customer provided that Arcus has reasonable grounds for believing that the alternate Goods being offered are substantially similar to those previously offered or the alternate Goods represent an improvement to the previously offered Goods.
12. PERSONAL PROPERTY SECURITIES LAW
12.1 For the purposes of this clause 12, Collateral means:
(i) all previously supplied Goods by Arcus to Customer and all Goods that will be supplied in the future by Arcus to Customer;
(ii) all the Customer’s present and after-acquired property, including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a Security Interest;
(iii) all the Customer’s present and after-acquired property, which is the subject of a Trust, including anything in respect of which the Customer as trustee of the Trust has at any time a sufficient right, interest or power to grant a Security Interest; and
(iv) all the present and after-acquired property of a Partnership of the Customer, including anything in respect of which the Partnership has at any time a sufficient right, interest or power for the Customer to grant a Security Interest (and each partner’s interest in the Partnership).
12.2 All other capitalised terms used but not defined within these terms or this clause 12 shall have the respective meanings given to them in the Personal Property Securities Act 2009 (“PPSA”).
12.3 Title to the Collateral shall at all times remain with Arcus and at no time shall Customer have any right, title or interest in the Collateral, including any liens and shall not make any pledge in respect of or allow any third party to take any security over the Collateral.
12.4 Risk in the Collateral, including in respect of any loss, theft, damage or destruction thereof, shall pass to the Customer upon delivery of the Collateral. The Customer indemnifies Arcus for all losses, costs, penalties and damages arising from the intentional or negligent damage by Customer to the Collateral.
12.5 The Customer agrees and acknowledges that the title to Collateral supplied on credit is retained by Arcus until such time that all debts are duly discharged, and that Arcus’s title is not displaced by possession of the Collateral by the Customer or any third party.
12.6 The Customer acknowledges and agrees that these terms, and any subsequent sales agreements are an accepted and adopted Security Agreement between Arcus and the Customer for the purposes of the PPSA, and that a Security Interest exists in all Collateral supplied to the Customer (and their proceeds). This Security Agreement between the parties includes any arrangements documented by emails or information or documents exchanged electronically.
12.7 In requesting Arcus supply Collateral, the Customer is deemed to have accepted this Security Agreement and any later amendments that may arise.
12.8 The Customer acknowledges, agrees and grants to Arcus, a Security Interest in:
(a) all Collateral and any proceeds previously supplied or that will be supplied in the future by Arcus to the Customer; and
(b) any proceeds that relate to the Goods purchased on credit by the Customer for the benefit of the Customer.
12.9 The above Security Interest secures all moneys owing by the Customer to Arcus under these terms or otherwise.
12.10 The Customer acknowledges and agrees the Security Interest is a continuing and subsisting interest in the Collateral with priority over any registered or unregistered general (or other) Security Interest and any unsecured creditor.
12.11 The Customer acknowledges that the Security Interest over Collateral or their proceeds arising under these terms as and where applicable will be a Purchase Money Security Interest (“PMSI”).
12.12 The Customer will do everything reasonably required of it by Arcus to enable Arcus to register its Security Interests with the priority it requires and to maintain those registrations, including to correct a defect in a financing statement.
12.13 The Security Interests arising under this clause 12 will be perfected by Arcus prior to the Customer obtaining possession of the Collateral and the parties confirm they have not agreed that any Security Interest arising under this clause attaches at any later time.
12.14 Arcus does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.
12.15 Any time the Customer makes a payment to Arcus, irrespective of whether the payment is made under or in connection with these terms, Arcus may apply that payment:
(a) first to satisfy an obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI;
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source.
12.16 The Customer agrees that the following sections of the PPSA will not apply to the enforcement of those Security Interests:
(a) sections 95 (notice of removal of accession to the extent it requires Arcus to give a notice to the Customer), 96 (retention of accession), 125 (obligations to dispose of or retain collateral);
(b) section 121(4) (notice to the Customer of a notice given to a higher priority party);
(c) section 125 (obligations to dispose of or retain collateral);
(d) section 130 (notice of disposal to the extent it requires Arcus to give a notice to the Customer);
(e) section 132(3)(d) (contents of statement of account after disposal);
(f) section 132(4) (statement of account if no disposal);
(g) section 135 (notice of retention);
(h) section 142 (redemption of collateral);
(i) section 143 (re-instatement of security agreement); and
(j) section 157 (Verification statements – secured parties to give notice to grantors)
12.17 The following provisions of the PPSA confer rights on Arcus:
(a) section 123 (seizing collateral);
(b) section 126 (apparent possession);
(c) section 128 (secured party may dispose of collateral);
(d) section 129 (disposal by purchase); and
(e) section 134(1) (retention of collateral).
12.18 The Customer agrees not to disclose to an Interested Person (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including these terms as the Security Agreement between the Customer and Arcus.
12.19 The Customer will notify Arcus immediately in writing if the Customer changes its name or address for service, contact details or if there are any changes required under the PPSA in respect of these terms.
12.20 The Customer’s right to possession of Collateral owned by Arcus under these terms will cease if:
(a) the Customer being an individual, commits an act of bankruptcy;
(b) the Customer being a corporation, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up, or the Customer enters into a deed or scheme of arrangement;
(c) the Customer ceases or threatens to cease conducting business in the normal manner, applies for deregistration, or receives a deregistration notice;
(d) the Customer fails to comply with any demand for payment issued by Arcus; or
(e) the Customer is in breach of any of these terms or is in default of any other agreement with Arcus.
12.21 The Customer agrees that Arcus is entitled to exercise the rights contained in section 123 of the PPSA and enter any premises where the Collateral supplied by Arcus are still unpaid for, repossess such Collateral. The Customer agrees to indemnify and keep Arcus indemnified in respect of any claims, actions and costs that may arise against Arcus in relation to the removal, repossession and sale of the Collateral pursuant to these terms including any claims brought by third parties.
12.22 The Customer agrees that repossession and retention of the Collateral pursuant to the PPSA will only satisfy so much of the monies which may become payable to Arcus by the Customer, as is equivalent to Arcus’s estimation of the market value of the Collateral as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Customer has in relation to the Collateral.
12.23 Until any obligations owed to Arcus by the Customer are discharged in full, the Customer must not give Arcus a written demand or allow any other person to give Arcus a written demand requiring Arcus to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.
12.24 The rights and obligations of Arcus and the Customer under the terms will be binding on, and will be of benefit to, each of the party’s successors, permitted assigns, heirs, executors and administrators.
12.25 Customer undertakes to keep in place on the Collateral at all times the plaque indicating that Arcus owns the Collateral and to inform Arcus if any third party threatens Customer’s continued possession of the Collateral. Customer shall use all efforts available to release Collateral seized by a third party.
The Customer is responsible for insuring the Collateral whilst it is located in the Customer’s premises. This is normally included in any contents insurance the Customer has in place and the insurance company should be notified of the Collateral installation.
13. STATUTORY WARRANTIES
13.1 Terms, conditions, warranties, guarantees and other obligations implied by law that cannot be excluded, restricted or modified apply to the extent required by that law.
13.2 Arcus excludes all other conditions, warranties, guarantees and obligations, whether as to the quality, fitness for any purpose, correspondence with any description, recommendation, sample or otherwise, or delivery, which would otherwise be implied concerning the activities covered by these terms.
13.3 To the extent permitted by law, Arcus’ sole liability for breach of contract, breach of statutory duty, breach of a condition, warranty, guarantee, negligence, or other tort or other obligation implied by law in relation to the supply of the Goods is limited to any one of the following at Arcus’ option:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired.
13.4 The Customer buys all Goods from Arcus, not for personal domestic or household use or consumption. The Customer buys all Goods from Arcus either for the purpose of re-supply or for the purpose of using the Goods up or transforming the Goods, in trade or commerce, in the course of a process of production or manufacture, and is therefore not a ‘consumer’ for the purposes of the Competition and Consumer Act 2010 (Cth) (“CCA”).
14. WARRANTY AGAINST DEFECTS
14.1 The warranty against defects in this clause 14 is in addition to any statutory warranties the Customer is entitled to under the CCA.
14.2 Subject to clauses 14.3 and 14.4, Arcus warrants all Goods manufactured by Arcus to be free from defects in materials and workmanship for ten (10) years from the date of invoice to the Customer (or any other period that Arcus in its absolute discretion agrees to in writing) (“Warranty Period”). During the Warranty Period, if Arcus agrees, acting reasonably, that the Goods are defective, Arcus will, at its option, either repair or replace the Goods at no extra cost to the Customer.
14.3 If Arcus elects to replace Goods, replacement may be with comparable goods if the item under warranty is no longer in production.
14.4 Repair or replacement of Goods does not extend or restart the Warranty Period.
14.5 If the Customer is considered a ‘consumer’ for the purposes of the CCA, then Arcus’ Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done, the Customer is entitled to a refund for the Goods. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods.
14.6 For the purposes of this warranty, a defect does not include visual appearances such as tea staining or discolouration.
14.7 This warranty against defects does not apply:
(a) to Goods which have been improperly fitted, improperly maintained or used in any application for which it has not been intended;
(b) to normal wear which can reasonably be expected in normal use of the Goods;
(c) to components or assemblies used in aeronautical applications;
(d) to Goods installed in severe chlorine or high humidity environments where chloramines occur (e.g. covered swimming pools), due to potential stress corrosion;
(e) where there has been an electric current passed through the Goods;
(f) where there has been a failure by the Customer or an end user of the Goods to carry out or observe instructions or directions given by Arcus;
(g) where the Customer made an error in its order and such error was not notified to Arcus prior to Arcus commencing work on the order;
(h) where there has been a modification or repair of the Goods attempted or carried out by the Customer or any other person; and
(i) in relation to stainless steel Goods, to those stainless steel Goods which have not been cleaned and maintained in accordance with Arcus’ Cleaning and Maintenance Guidelines, located at https://www.arcuswire.com/downloads.
14.8 To make a claim under this clause 14, the Customer must (within the Warranty Period and within 14 days of the defect becoming evident) submit a claim to Arcus using the following contact details:
Phone: 1800 272 879
Address: 9 Keller Crescent, Carrara, Queensland, 4211
Email: [email protected]
14.9 The Customer’s claim must include the following information:
(a) the Customer’s name, address and phone number;
(b) a description of the Goods;
(c) a description of the defect (with supporting photos, where relevant), and the circumstances in which the defect appeared;
(d) proof of the Customer’s purchase of the Goods and details of the date and place of supply;
(e) in relation to stainless steel Goods, evidence of the Customer’s compliance with Arcus’ Cleaning and Maintenance Guidelines; and
(f) any other information Arcus reasonably requests about the circumstances in which the Customer considers gave rise to the defect.
14.10 Arcus will then arrange for the Goods to be inspected to determine whether they are defective. Arcus will charge a call-out fee for this inspection, however any call-out fee charged will be refunded if Arcus determines, acting reasonably, that the Goods are defective.
14.11 The Customer acknowledges that the warranties in this clause 14 are given by Arcus for the benefit of the Customer only and are not transferable.
14.12 This clause 14 sets out the sole remedy for the Customer under the warranty given by Arcus in this clause.
15. OTHER LIMITATIONS
15.1 The Customer does not rely on any representation, warranty or other provision made by or for Arcus which is not expressly stated in these terms, including any terms and conditions sought to be imposed by the Customer.
15.2 Except for its liability under clauses 13 and 14, Arcus is not liable (nor are its employees, contractors and agents liable) for any damage, economic loss or loss of profits whether direct, indirect, general, special or consequential:
(a) arising out of any breach of any implied or express term, condition or warranty; or
(b) suffered as a result of the negligence of Arcus or its employees, contractors or agents.
15.3 The liability of a party under these terms (whether arising in contract, negligence or other tort or by statute) is to be reduced by the same proportion as represents the proportion of the loss or damage caused or contributed to by the other party, its contractors or agents.
16. PRIVACY
16.1 Each party must comply with the privacy laws in Australia, including the Privacy Act 1988 (Cth), in respect of all personal information collected from or disclosed to the other during the performance of its obligations under these terms.
16.2 The Customer accepts Arcus’ privacy policy available on Arcus’ website and consents to Arcus collecting any personal information for the purposes set out in the privacy policy.
16.3 On request, the Customer may access and correct any personal information that Arcus holds about the Customer.
16.4 The Customer consents to Arcus or its associates contacting the Customer electronically or otherwise to provide marketing or other information. Arcus may disclose, and the Customer consents to such disclosure of, the Customer’s personal information to other Arcus entities or suppliers for information and marketing purposes.
16.5 The Customer agrees Arcus may assess credit worthiness by seeking information about the Customer’s, and its related entities’, personal or commercial credit arrangements and Arcus may obtain a credit report about the Customer and its related entities from a credit reporting agency at any time. The Customer acknowledges that if all information requested by Arcus is not disclosed, Arcus may not provide the Customer with credit.
17. MISCELLANEOUS
17.1 If, for any cause beyond Arcus’ control, including without limitation any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award or restriction, fire, flood, storm, epidemics, pandemics, delay in obtaining licenses, transport, labour or materials, accidents, damage to Arcus’ works or business or those of its suppliers, accidents, strikes, transport difficulties or stock shortages, Arcus is prevented from making delivery or performance at the time stipulated, Arcus will be entitled at its option either to extend the time for delivery or performance for a reasonable period or to terminate the order. In such circumstances, the Customer does not have any claim for damages and agrees to pay for all deliveries made prior to the date of termination and all expenses incurred and monies paid by Arcus in connection with the order prior to the date of termination.
17.2 These terms can only be varied by one of Arcus’ authorised officers signing a document which states the variation. These terms may be changed from time to time by Arcus giving notice of the change to the Customer. Notice is deemed given (whether or not actually received) when Arcus does any of the following:
(a) sends notice of the change to the Customer at any address (including an email address) supplied by the Customer;
(b) or publishes the amended terms on Arcus’ website.
17.3 The Customer warrants that any officers signing documents on the Customer’s behalf are duly authorised and all information provided by the Customer is true and correct, not misleading and deceptive.
17.4 In these terms, no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, these terms or any part of them.
17.5 Each agreement which includes these terms is deemed to be an agreement made in and governed by the laws in force in New South Wales, and the parties submit their disputes to the non-exclusive jurisdiction of the courts of New South Wales.
17.6 In these terms a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute.