Terms and Conditions of Trade

These Trading Terms shall govern the sale and delivery of goods and services by RF Composites Pty Ltd “RF Composites, you” to its customers.

Terms and Conditions mean these terms and conditions, as amended, modified, consolidated or replaced from time to time. They apply to any goods or services supplied or to be supplied to us or any third party at our request.

“Customer” and “we, our, us” means the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation, or other form as provided by RF Composites to the customer.

1. Price

(a) We must pay for any goods by the date stated in the relevant invoice by electronic means or by direct debit if required by you or in cash, cheque and bank cheque, accepted by you or free of any set off, counterclaim or any other deduction. You may allocate payments in any manner you choose.

(b) The price of all goods is the amount shown in any invoice and is exclusive of GST except where the price is expressed to be inclusive of GST.

(c) We will pay interest compounded monthly on any overdue account shown in any invoice at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 2%.

(d) You may increase the price of any goods ordered by us at any time arising as a result of any increased costs passed on to you by any supplier of yours or as a result of any change of law, including increases in any taxes.

(e) All prices exclude the costs of delivery, packing, loading and installation of the Goods.

(f) All prices are subject to alteration by you to reflect price ruling as at the date of your acceptance of our order. Prices published in lists and catalogues are recommended prices only. We accept that you are under no obligation to sell the Goods to us at the recommended prices.

(g) You may change the prices for the Goods at any time.

(h) Where fluctuating exchange rates affect the price payable by you for the Goods, and that exchange rate fluctuation has not been expressly allowed for by you in calculating the price payable by us, the Contract price for the Goods will be varied accordingly.

2. Risk and Title

(a) Risk in any goods passes to us on delivery.

(b) Title remains with you until we have paid you for all goods supplied in full and in cleared funds.

(d) We agree that any proceeds of any sub-sale to any customer of ours will be held in trust in a separate account until the amount we owe to you at any time for those goods is paid to you. For the purposes of this clause, proceeds includes the sale price to any sub-buyer less any profit added by the buyer to the invoiced price of any goods or an amount equal to the proportion of the value of your goods in the product or mass calculated in accordance with Part 3.4 of the PPSA.

(e) We must store any goods belonging to you separately from other goods in our possession so as to prevent any deterioration and clearly mark them as your goods.

(f) We must comply with all applicable laws in relation to the transportation, delivery, handling and storage of any goods. Without limitation, any environmental and O H & S laws.

(g) We agree to instruct any customer or agent of ours in relation to the proper and safe handling, carriage or storage of any goods, including compliance with any O H & S or environmental laws.

3. Delivery, Claims, Returns & Cancellations

(a) We agree that your Terms and Conditions current at the time of delivery apply to any order we place with you from time to time.

(b) Any order placed by us with you is irrevocable.

(c) Delivery to us will be at your premises or as requested by us, including any agent of ours. If not collected after 7 days of any nominated delivery date, we must pay all storage costs. You will not be liable for any delays. All expenses relating to delivery, insurance, transit or storage of goods after delivery to us will be at our cost.

(d) You may stop goods in transit whether or not delivery has been made to us if we are in default at any time.

(e) Once delivered goods may not be returned unless defective or damaged in transit. Claims for defective or damaged goods must be given to you in writing within 7 days of delivery date or invoice date, whichever is the earlier. You will not be liable for any claim advised after that time. Claims are subject to inspection.

(f) We irrevocably authorise you and any of your lawful agents, at any reasonable time, to enter our premises or any premises occupied by us or our agents and re-take any goods and then to re-sell those goods and retain the proceeds of the sale without prejudice to your rights to claim the balance of all moneys due. We indemnify you in respect of any such entry. The provisions of this clause survive the termination of any security agreement that arises in respect of these Terms and Conditions.

(g) We will accept delivery of the Goods in partial shipments.

(h) Claims in respect of Goods

Unless you have delivered the wrong goods, you are not obliged to accept the return of any Goods. We may not return Goods if:

i) They are marked “not returnable” or if they are specifically labelled for us or our customer; or

ii) They are imported by you specifically for our order;

iii) The Goods have been modified to suit our or our customer’s specifications;

iv) The Goods are damaged as a direct or indirect result of our conduct;

v) The shelf life applicable to those Goods has expired.

vi) Must occur within thirty (30) days of the date of delivery. Invoice and delivery note numbers must be supplied to you at the point of return; and

vii) Must be “as new” and must be in the original packaging so as to avoid damage; and

viii) Must be sent by freight prepaid by you; and

ix) Will incur a restocking charge calculated at ten percent (10%) of invoice value on all Goods that you agree you may return to us, unless you have delivered to us the wrong Goods, in which case the restocking charge will be waived, and

(x) Will be inspected and tested by you before a credit note is issued. A credit note will not be issued unless you are satisfied that the Goods are in the same condition that they were in when they were delivered to us and further, you are satisfied that we have complied will all of our obligations.

i) Incorrect Delivery, if you have delivered the wrong Goods, we must return them using a carrier of your choice and you will pay for the return delivery incurred when returning any goods to you.

j) Claims in respect of services provided by you must be received by us within thirty (30) days of the date that you provided the services.

k) You will not consider our claim in respect of the Goods or the Services if:

i) We do not give the written notice;

ii) We have not complied with our obligations in this contract;

iii) We do not supply you with copies of the relevant invoice(s) at the point that we make our claim;

iv) We do not permit an expert nominated by you to inspect and test the Goods, so that the expert may prepare a report on the Goods and provide an opinion as to the cause of our claim.

l) You may in your discretion also cancel the Contract if:

i) We do not take delivery of the Goods for one (1) month after we are notified that they are available for collection;

ii) We fail to make payment pursuant to these Terms after having been given seven (7) days’ written notice to remedy our failure to pay;

iii) We fail to observe and perform our obligations to you pursuant to these Terms;

iv) An administrator is appointed, an application to wind us up is filed, notice of intention to pass a resolution to wind up is given, a receiver and/or manager is appointed over any or all of our assets, we commit an act of bankruptcy or appoint a controlling trustee; or

v) We become insolvent under administration pursuant to the provisions of the Corporations Act 2001 as amended or the Bankruptcy Act 1966 as amended;

m) If you cancel the Contract:

i) You may resell the Goods.

ii) If the resale price of the Goods is less than the value that the Goods were invoiced to us, you may recover from you the difference, as well as any costs it incurs in the resale process, including interest and legal costs payable.

iii) If the resale price of the Goods is more than the value that the Goods were invoiced to us, you will reimburse to us any surplus remaining after satisfaction of its said interest, administrative costs, mercantile agents costs and legal costs, provided always that any reimbursement will not exceed the monies that you have paid in respect of those Goods.

4. Security agreement

We agree that these Terms and Conditions, including any order and invoice covering any goods ordered by us, together constitute a security agreement for the purposes of the PPSA.

5. Security Interest

5.1 We give you a security interest in:

(a) all goods supplied by you that are described in any invoice, delivery or shipping documentation of yours or order documentation that we give you. Without limitation, this includes any RF Composites property referred to in these Terms and Conditions;

(b) all present and future inventory and accounts as original collateral; and

(c) all present and future property of ours including real property. We agree that you may lodge a caveat against any real property. We agree to give you a mortgage in respect of any real property in registrable form if required by you.

(d) The security interest given by us is given as beneficial owner. If we are trustee of any trust, we acknowledge that the security interest given by us applies to the assets of the trust and our personal assets. We appoint you our attorney by way of security for the purposes of this clause and in respect of any enforcement powers.

5.2 Any security interest that arises under this clause is a continuing security interest. It applies to all real property, personal property and any proceeds. It is not extinguished or in any way diminished even if any goods or any part of them is processed or commingled with and becomes part of a product or a mass as part of a manufacturing, assembling or commingling process.

5.3 Any security interest arising secures the due and punctual payment of all moneys payable by us under these Terms and Conditions.

5.4 Any account arising by virtue of any sale of any goods supplied to us takes effect as a transfer.

5.5 You may register a financing statement, including any financing change statement, on the PPSR. If required by you, we will reimburse you for any costs and expenses and other charges incurred by you in registering them. We irrevocably waive any rights to receive a copy of any verification statement.

5.6 We acknowledge that until we have paid for all goods we are not the owner of those goods and, as such, if chapter 4 of the PPSA applies to these Terms and Conditions, then we contract out of the enforcement provisions referred to in s 115(1), except sections 120 and 121.

5.7 To the extent the law allows you need not give any notice required by the PPSA or any other law, including any notice mentioned in any of the enforcement provisions in chapter 4 of the PPSA.

6. Enforcement

6.1 If an Event of Default occurs or is continuing, you may immediately enforce these Terms and Conditions. Without limitation this includes:

(a) retaking possession of any goods not paid for by us;

(b) suspending delivery of any goods on order and/or refusing to process any unfulfilled order.

(d) requiring payment in cash on delivery.

(e) requiring payment of any proceeds held by us in a separate account or otherwise.

(f) appointing a receiver and manager of any of our real or personal property that is subject to a security interest. We agree that any such receiver and manager has the powers conferred by the Corporations Act.

6.2 The powers exercisable by you are those given by these Terms and Conditions, including the PPSA, at law or in equity.

6.3 In the event that we have not been paid for the sale of your goods by any customer of ours, at your option, you may in addition to the powers in s 120 of the PPSA, collect that account on giving our customer notice in writing to that effect. You will be entitled to issue proceedings in our name against our customer for recovery of that account for your benefit. We indemnify you in respect of any such action and proceedings. For the purposes of this clause, we must keep proper records and accounts in respect of such unpaid sales, including the dates of sale, price, amount and identity of such customer and your goods.

6.4 You may in your discretion despite s 14(6) of the PPSA apply any moneys received in respect of any PMSI obligations of ours on a pro rata basis.

6.5 We will pay your enforcement costs and those of any agent of yours including legal costs on an indemnity basis.

7. Negative pledge

7.1 We agree not to grant any security interest over any of our personal property except in the ordinary course of business.

7.2 We agree not to grant a security interest in any account as original collateral under s 64 of the PPSA.

8. Force Majeure

You are not liable for any delay or the failure to perform any obligation in our favour arising as a result of a force majeure event.

9. Confidentiality

Any security agreement that arises under these Terms and Conditions is confidential. Despite this, we agree that you may disclose any information concerning us to any interested person under s 275(6) of the PPSA.

10. General

10.1 We will tell you if we change our name, any of our officers or management, our registered office, become a trustee of any trust or, cease to be so, or the constitution of any partnership of which we are a member changes.

10.2 Any certificate signed by you, any director or any person authorised by you as to the amount due and payable by us is sufficient evidence of our liability to you under these Terms and Conditions as at the date of any such certificate unless proven wrong.

10.3 If any provision of these Terms and Conditions is unenforceable for any reason, it will not invalidate any other provisions that will remain in full force and effect despite that invalidity.

10.4 These Terms and Conditions contain the entire agreement in respect of the supply of goods to us.

10.5 You may at any time set off any amount you owe us against any amount payable by us to you whether or not the amount we owe you is due and payable or actually or contingently payable by us.

11. Governing law

These Terms and Conditions are governed by the laws of Victoria. We submit to the non-exclusive jurisdiction of any Victorian court and waive any rights to claim that courts there are an inconvenient forum.

12. Notices

12.1 Any notice required under these Terms and Conditions may be given by any party, any director or authorised person of that party.

12.2 Any notice may be given at that party’s registered address or other address stipulated in application in connection with these Terms and Conditions or as notified in writing for the purposes of this clause. Without limitation, this includes any electronic address notified to the other party.

13. Time

For the purposes of any payment obligation of ours under these Terms and Conditions, time is of the essence.

14. Survival of indemnities

14.1 Each indemnity and payment obligation of ours under these Terms and Conditions is a continuing obligation, separate and independent from all other obligations, and survives termination of these Terms and Conditions.

14.2 It is not necessary for you to incur expense or make a payment before enforcing a right of indemnity.

15. Exclusion of implied terms

15.1 To the extent permitted by law, you exclude all conditions, warranties, terms and consumer guarantees implied by law (including the Australian Consumer Law) arising in connection with a supply of goods or services. To the extent permitted by law, you limit your liability in your discretion to replacing the goods or supplying equivalent goods, or, in the case of services, by supplying the services again.

15.2 Any advice, recommendation, information, assistance or service provided by you in relation to the Goods or their use or application is given in good faith, is believed by you to be reliable, but is provided with an express disclaimer for any liability or responsibility on the part of you and is subject always to the recommendations in clause 15.3 herein.

15.3 You recommend that we test a sample of the Goods before ordering large quantities, to ensure suitability to our intended end use.

16. Limitation of liability

To the extent permitted by law, you exclude any liability in contract, tort (including negligence) or otherwise, in connection with the supply of goods and services for an indirect damages or losses, or for any special, punitive or exemplary damages. This includes any liability for a claim that the goods are not fit for a particular purpose, except where the goods are consumer goods or services in which case your liability is limited as under clause 15.

17. Design and Specifications

17.1 You may amend the design, data, illustrations, drawings, plans, specifications of weight, dimensions, performance, consumption, lifetime, construction or technical information (“Designs and Specifications”) in respect of any of the Goods and Services at its discretion from time to time.

17.2 We will accept the Goods with any Designs and Specifications amendments unless those amendments constitute material alterations that change the characteristics of the Goods.

17.3 We will accept the Goods with any Designs and Specifications amendments unless those amendments constitute material alterations that change the characteristics of the Goods.

17.4 Designs and Specifications provided by you in any offer are estimates only unless otherwise expressed in writing.

17.5 Copyright in all Designs and Specifications provided by you in connection with any quotation or contract remains with you.

17.6 Designs and Specifications made available to us by you are to be treated as confidential information unless they can be proven to be in the public domain before we received them from you. Designs and Specifications must be used by use for the purpose only for which they were provided.

17.7 We must not use, duplicate, copy or disclose any technical date belonging to you to any other person or for any purpose other than for the use, application or maintenance of the Goods.

18. Definitions

Event of Default means:

(a) we fail to pay when due any moneys owing to you under these Terms and Conditions.

(b) we give any third party a security interest in accounts as original collateral in respect of the proceeds of any collateral covered by a security interest under these Terms and Conditions.

(c) we breach any other provision of these Terms and Conditions and fail to cure it within 5 business days’ notice from you to do so.

Default has a corresponding meaning.

Force Majeure Event means a supervening event, which is outside of your control.

GST means any goods and services or similar tax, together with any related interest, penalties, fines or other charge. Tax invoice, taxable supply and value have the meaning given to them by the GST Law.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Goods mean any goods you supply to us that are described in any invoice, quotation, work authorisation or any other documents you provide us or any order we give you, whether on consignment or otherwise, under these Terms and Conditions

Guarantor means that person, or entity, who agrees to be liable for our debts whether on a principal debtor basis or who is otherwise a surety of ours.

PPSA means the Personal Property Securities Act 2009 (Cth).

The expressions account, collateral, financing statement, financing change statement, inventory, proceeds, purchase money security interest (PMSI), security agreement, security interest, verification statement have the meanings given by the PPSA. Without limitation, security interest bears its natural meaning. It also applies to all land and licenses and personal property that is not personal property covered by the PPSA.

Terms and Conditions mean these terms and conditions, as amended, modified, consolidated or replaced from time to time and located on your website current at the time of delivery. They apply to any goods or services supplied or to be supplied to us or any third party at our request.

Buyer means we, our or us.

19. Interpretation

(a) The singular includes the plural and the converse.

(b) A gender includes all genders.