Terms and Conditions of Sale

Pro Amino is a manufacturer and distributor for business to business only and doesn’t sell products through proamino.com.au direct to the public.

Effective 1 July 2014

1. General

This document together with the relevant invoice or quote embodies the sole terms and conditions of the contract between Pro Amino and the purchaser and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by Pro Amino.
These terms and conditions shall without further notice apply to all future transactions between Pro Amino and the purchaser in relation to the sale and purchase of goods, whether or not this document is delivered or executed in the course of the transaction.
For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Purchaser (including without limiting the foregoing those included in any purchase order or like document from the purchaser) shall apply to or form part of the contract, except and to the extent otherwise agreed in writing by Pro Amino.
All purchase orders supplied by the purchaser are subject to acceptance by Pro Amino and no contract between Pro Amino and the purchaser comes into existence until Pro Amino issues an invoice in relation to the order.
No variation or abrogation of these terms and conditions shall be effective unless it is evidenced in writing signed on behalf of Pro Amino.

2. Payment

Unless otherwise agreed by the parties in writing payment is required at time of invoice.
Payment can be made via direct funds transfer into Pro Amino’s nominated account or paid via credit card
Time for payment for goods shall be of the essence. If the purchaser fails to pay the price of the invoice when due Pro Amino may treat the contract as repudiated by the purchaser or may, unless payment is made in full, suspend delivery of goods with the purchaser without incurring any liability whatsoever to the purchaser.
Notwithstanding any rights of lien to which Pro Amino may otherwise be entitled, Pro Amino shall have a specific lien (including a right of sale) over the goods until the price of the goods has been paid in full. The purchaser shall not be entitled to make any deduction from the price of the goods in respect of any off-set or counter claims.

3. Delivery

Any time or date named and accepted by Pro Amino for completion, delivery, dispatch, shipment or arrival of the goods or for tender of any documents is an estimate only and does not constitute a condition of contract or form part of the description of the goods and is not of the essence of the contract.
Unless otherwise stated in writing Pro Amino may make partial deliveries or deliveries by instalments in any amount it may determine and each such partial delivery or delivery by instalments shall be deemed to be a separate contract and these conditions shall apply to each partial delivery or delivery by instalment.
The purchaser shall notify Pro Amino within 24 hours of delivery of any short fall in or loss or damage to goods delivered. Failure to so notify shall, subject to the requirements of any prescribed terms, dis-entitles the purchaser to any remedy in respect to the shortage, loss or damage.

4. Risk and Title

Except as otherwise provided herein, the goods supplied by Pro Amino to the purchaser shall be at the purchaser’s sole risk immediately on their delivery to the purchaser.
Property and title in the goods supplied by Pro Amino to the purchaser will not pass to the purchaser until such time as the goods supplied by Pro Amino to the purchaser have been paid for in full. Until that time, the purchaser shall store the goods, in such a manner as to show clearly that they are the property of Pro Amino and shall upon Pro Amino’s demand deliver up such goods to Pro Amino. In default of such delivery Pro Amino may by its servants and agents enter the purchaser’s premises at any time without notice to repossess the goods.
Subject to the PPSA, until such time as the goods have been paid for in full the purchaser is at liberty to sell the goods, in the ordinary course of its business, and the purchaser shall hold the proceeds thereof in trust for Pro Amino and promptly account to Pro Amino for those proceeds in payment of the purchase price for the goods.
The purchaser and Pro Amino agree that the provisions of this clause apply notwithstanding any agreement between the parties under which Pro Amino grants the purchaser credit.

5. Personal Property Securities Act 2009

The terms “Collateral”, “Debtor”, “Financing Change Statement”, “Financing Statement”, “Grantor”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have the meanings given in the PPSA.
The purchaser acknowledges and agrees that by accepting these terms and conditions which form part of the Contract and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA:
1. Pro Amino holds (as Secured Party) a Security Interest over all of the present and after acquired goods supplied by Pro Amino to the purchaser and any proceeds of the sale of those goods (“Collateral”);
2. that any purchase by the purchaser on credit terms from Pro Amino or retention of title supply will constitute a purchase money security interest as defined under section 14 of the PPSA (“PMSI”);
3. the PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence;
4. until title in the goods pass to the purchaser, it will keep all goods supplied by Pro Amino free of any charge, lien or Security Interest and not otherwise deal with the goods in a way that will or may prejudice any rights of Pro Amino under the Contract or the PPSA; and
5. any Pro Amino Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all over registered or unregistered Security Interest;
6. Pro Amino will continue to hold a Security Interest in the goods in accordance with and subject to the PPSA, notwithstanding that the goods may be processed, commingled or become an accession with other goods.
7. in addition to any other rights under these terms and conditions or otherwise arising, Pro Amino may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Buyer, to search for and seize, dispose of or retain those goods in respect to which the purchaser has granted a Security Interest to Pro Amino.
The purchaser undertakes to:
1. sign any further documents and provide such information which Pro Amino may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
2. indemnify and upon demand reimburse Pro Amino for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
3. not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Pro Amino; and
4. provide Pro Amino not less than 7 days prior written notice of any proposed change in the purchaser’s name, address, contact numbers, business practice or such other change in the Purchaser’s details registered on the PPS Register to enable Pro Amino to register a Financing Change Statement if required
Pro Amino and the purchaser agree that sections 96, 125 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under this contract.
The purchaser hereby waives its rights to received notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA
The purchaser waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA
Unless otherwise agreed in writing by Pro Amino, the purchaser waives its right to receive a verification statement in accordance with section 157 of the PPSA
The purchaser shall unconditionally ratify any actions taken by Pro Amino under this clause
This clause will survive the termination of the Contract to the extent permitted by law

6. Warranties and Exclusions of Liability

Pro Amino warrants that the goods when delivered to the purchaser will comply with any description for the goods contained in the relevant Invoice. Pro Amino is not required to supply goods with any specification or characteristics that are outside any such description for the goods (if any) or the Standard Specifications.
The purchaser acknowledges, agrees, represents and warrants that:
1. as the use of the goods is outside the control of Pro Amino, the purchaser is satisfied that the goods when supplied in accordance with clause 6.1) will have the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those goods, even if that purpose is made known to Pro Amino at any time;
2. the purchaser has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the goods and any product that is produced from them will be without defect and suitable or fit for any purpose required for them; and
3. the purchaser has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by Pro Amino or anyone on its behalf in respect of the goods, other than those that are expressly contained in the contract.
The purchaser releases and indemnifies Pro Amino and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the purchaser and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of any breach by the purchaser of any warranty provided by it under paragraph 2. of this clause.
Except as expressly set out in the Contract and except for liability under any Prescribed Terms, to the full extent permitted by law:
1. all conditions, warranties, guarantees, terms and obligations expressed or implied by law or otherwise relating to the Contract or the performance of Pro Amino’s obligations under the Contract or to any goods or services supplied or to be supplied by Pro Amino under the Contract are excluded, except for those conditions and warranties as to title in the goods; and
2. without limiting the generality of the foregoing, Pro Amino gives no condition, warranty or guarantee whatsoever as to the suitability, performance or fitness of the goods for their ordinary or any special use or purpose, and the description of the goods in any Contract or any other document shall not import any such condition, warranty or guarantee on the part of Pro Amino.
Notwithstanding anything to the contrary herein contained but subject to the provisions of any Prescribed Terms, Pro Amino’s liability in respect of any Claim arising in any way out of the Contract or its performance or from any failure to perform the Contract including (without limiting the generality of the foregoing) for breach of any condition, warranty or guarantee contained in the Contract or in any Prescribed Term implied into or applying to the Contract and whether that liability arises under contract, tort (including negligence), breach of statutory duty or otherwise, is limited as follows:
1. if any guarantee under the Act is applicable to any good or service supplied by Pro Amino and Pro Amino’s liability is due to a failure to comply with the guarantee and such failure cannot be remedied or is a major failure as defined in the Act (each such failure hereafter referred to as a Relevant Failure), Pro Amino’s liability is as stated in the Act in respect of that Relevant Failure;
2. if the liability is due to a failure to comply with any condition, warranty or guarantee in respect of any good or service supplied by Pro Amino under the Contract and such failure is not a Relevant Failure, Pro Amino’s liability is limited as follows in respect of such failure:
  - if the failure is in respect of goods, Pro Amino’s liability is limited to replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired, as determined by Pro Amino in its sole discretion; and
  - if the failure is in respect of services, Pro Amino’s liability is limited to the supply of the services again or payment of the cost of having the services supplied again, as determined by Pro Amino’s in its sole discretion;
3. in respect of all other liability (if any), Pro Amino’s liability is limited in the aggregate to the amount of $1,000.
To the extent permitted by law, Pro Amino will have no liability to the purchaser, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity arising out of or in connection with the Contract or its performance.

7. Return of Goods

Goods supplied to the purchaser are not returnable except as provided in clause 6
If the goods are in accordance with clause 6.1) and all Prescribed Terms and are otherwise in compliance with the provisions of the Contract, Pro Amino may from time to time under exceptional circumstances choose to accept the return of the goods from the purchaser. A cancellation fee will apply and the purchaser will also reimburse Pro Amino for all costs associated with the delivery and return of the goods.

8. Indemnity

The purchaser shall keep Pro Amino indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the purchaser or which the purchaser may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the goods unless such costs, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, Pro Amino or its duly authorised employee or agent.

9. Licenses, Duties, etc.

The payment of any taxes and the obtaining and maintenance in full force and effect of any necessary export or import licenses, authorisations or consent in respect of the goods is the sole responsibility of the purchaser and Pro Amino shall be under no liability whatsoever in respect of goods exported or imported without any necessary licenses, authorisations or consent.

10. Health and Safety

It is the purchaser’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and the use of the goods and, where information is supplied to the purchaser on potential hazards relating to the goods, to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers. Without prejudice to the foregoing, it is also the purchaser’s responsibility to provide safe facilities for the reception of goods into storage.

11. Goods and Services Tax (GST)

Goods and Services Tax (GST) will be charged on those products that attract GST at the applicable rate.

12. Industrial Property Rights

The purchaser shall not alter, remove or in any way tamper with any of the trade or other marks or numbers of Pro Amino attached to or placed upon the goods.

13. Force Majeure

Pro Amino shall not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under the Contract when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure. Without limiting the generality of the foregoing, this includes any liability whatsoever for any delay in completion, delivery, despatch, shipment or arrival of the goods or in the tender of any documents or the like.

“event of force majeure” includes any acts of God, war, riots, strikes, lock outs, trade disputes, fires, break downs, mechanical failures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of Pro Amino.

If there is an event of force majeure, Pro Amino will notify the purchaser of the event and the likely impact on its performance under the Contract. If the event affects the capacity of Pro Amino to complete its material obligations under the Contract in a timely manner, Pro Amino may by notice to the purchaser terminate the Contract without any liability whatsoever on its part arising from such termination.

14. Notices

Any notice to be given to the purchaser shall be deemed to be given upon it being posted, emailed or sent by facsimile to the address, email address or facsimile number of the purchaser set out in the Contract or to the Purchaser’s registered office or to the Purchaser’s last known address.

15. Assignment

The purchaser may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person or corporation whatsoever.

16. Sub-contract

Pro Amino reserves the right to sub-contract the performance of any Contract or part thereof to any other party or person or corporation it may determine.

17. Proper Law and Jurisdiction

All Contracts made between Pro Amino and the purchaser shall be governed by and construed in accordance with the laws of Queensland, Australia. The Purchaser agrees to submit to the non-exclusive jurisdiction of the Queensland Courts and courts of appeal there from for all purposes of or in connection with such Contracts.

18. Cost Recovery

Any expenses, costs or disbursements incurred by Pro Amino in recovering any outstanding monies owing by the purchaser including debt collection fees and solicitors costs shall be paid by the purchaser, providing that those fees do not exceed the scale charges as charged by that debt collection agency or solicitor plus any out of pocket expenses.