Terms of Trade
All goods are sold and supplied by Tomkin Australia Pty Ltd ABN 59 001 317 862 (“Tomkin”) to you (“the Customer”) on the following terms and conditions:
(a) The Customer acknowledges having received and read a copy of these terms and conditions of trade (“the Terms of Trade”).
(b) Tomkin may vary the Terms of Trade at any time by publication of new terms of trade on its website or by notice in writing to the Customer. Varied Terms of Trade will only apply to orders made by Customers subsequent to the variation. The Terms of Trade that will apply to orders are the Terms of Trade that applied when the order was placed.
(c) An order made by the Customer will be binding on Tomkin and the Customer if it is accepted by Tomkin. An order will be considered to be accepted by Tomkin if a written acceptance is given by Tomkin or the goods are supplied by Tomkin in accordance with the order.
(d) An acceptance of the order by Tomkin is then to be an acceptance of the Terms of Trade by Tomkin and the Customer. An order which has been accepted in whole or in part by Tomkin cannot be cancelled by the Customer without obtaining the prior written approval of Tomkin, which Tomkin may refuse in its absolute discretion, subject to clause 2(c).
(e) The Terms of Trade constitute the entire agreement between the Customer and Tomkin and prevail over any oral, written, previous, contemporaneous and all other communications between the parties unless otherwise expressly agreed in writing and signed by the parties.
(f) The Terms of Trade will apply to all orders made by the Customer with Tomkin.
(a) The price of the goods shall be the price charged by Tomkin at the date of delivery, subject to this clause 2.
(b) The price of goods quoted by Tomkin at the date of order is subject to variation and increase in material costs, supply, production, delivery and applicable taxes incurred and arising between the date of order and the date of delivery.
(c) If the price of the goods increases between the date of order and the date of delivery, Tomkin will notify the Customer and grant the Customer 48 hours to cancel its order if the price increase is not
accepted. If the order is cancelled within this period, Tomkin will refund any price paid in advance by the Customer. If the order is not cancelled within this period, the price increase will be deemed to be accepted by the Customer.
(d) The price charged for goods is subject to applicable taxes (including goods and services tax), delivery and handling charges, which are payable by the Customer in accordance with the Terms of Trade.
(a) The Customer must pay Tomkin for all goods in full within 30 days from the date of Tomkin’s invoice to the Customer.
(b) The Customer is entitled to a discount of 2.5% if payment in full is received by Tomkin within 10 days from the date of Tomkin’s invoice to the Customer. However, the Customer is not entitled to this discount if any amount is owing to Tomkin in relation to other goods invoiced and not fully paid for by the Customer within the 30 day period.
(c) Tomkin may accept payment of any invoice by credit card but only where no amount is owing on the Customer’s account for more than 30 days. Tomkin reserves the right to pass onto the Customer the fee charged to it by the credit card company.
(d) The Customer shall not set off against the payment due to Tomkin any amount(s) the Customer claims for the return of goods or for short deliveries, incorrect goods or defective goods.
Without prejudice to any other rights Tomkin may have at law, if payment in full is not received by Tomkin within the time stipulated in clause 3(a) then the Customer agrees:
(a) to pay Tomkin interest at 2% per annum above the current Westpac Bank indicator lending rate from time to time on any unpaid amount until payment in full is made, calculated daily;
(b) Tomkin may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights; and
(c) Tomkin may immediately and without further notice, refer the unpaid invoice to a debt collection agency. In this event, it is further agreed that the Customer will be liable to pay Tomkin the outstanding amount together with interest as referred to above and all legal costs and expenses incurred in attempting to recover the unpaid invoice, including any commissions or other amounts payable to a debt collection agency.
(a) Goods will only be supplied to a Customer on credit at the discretion of Tomkin.
(b) Tomkin may at any time in its discretion disallow a Customer credit or decline a Customer’s order request.
(c) New Customers must pay Tomkin for goods in full prior to delivery.
(d) New Customers are subject to minimum order requirements as set out in clause 7(a).
(e) New Customers will remain on a prepaid basis until Tomkin determines in its discretion that the Customer may be allowed credit terms.
(f) A Customer with an account which has been inactive for 6 months or a Customer who does not comply with the terms of payment in clause 3 will be deemed a new Customer.
6. Credit Checks
The Customer acknowledges and agrees that, upon submission of a completed Account Application Form, including any Director’s Guarantee form, Tomkin is authorised to perform any credit checks on the Customer or any director or guarantor of the Customer with third parties as it requires.
7. Minimum Orders
(a) The minimum order for all new Customers is $1,000.00 (GST exclusive).
(b) For delivery within Australia, orders must exceed $250.00 (GST exclusive).
(c) The minimum order for “pick up” from Tomkin’s warehouse in Greenacre is $100.00 (GST exclusive) and is subject to a handling fee set out in clause 11.
(d) All goods are subject to minimum pack quantities (referred to as ‘sales multiples’) set by Tomkin from time to time.
8. Special Orders
Special orders of goods or goods made to the Customer’s specifications:
(a) must be paid for in full at the time of order at the price charged by Tomkin; and
(b) will not be accepted by Tomkin for exchange, return or cancellation, unless defective, subject to applicable laws.
9. Back or Forward Orders
(a) Goods temporarily out of stock will be placed on back order. When available these goods will be included in the Customer’s next delivery.
(b) Back orders and forward orders will be supplied at the prices charged by Tomkin at the date of delivery (not the date of the order).
(c) If the price of the goods increases between the date of order and the date of delivery for back or forward orders, Tomkin will notify the Customer and grant the Customer 48 hours to cancel its order if the price increase is not accepted. If the order is cancelled within this period, Tomkin will refund any price paid in advance by the Customer. If the order is not cancelled within this period, the price increase will be deemed to be accepted by the Customer.
If a goods and services tax or other value added tax (“GST”) applies in respect of any supply made to the Customer under or in connection with the Terms of Trade, the amount payable for that supply will be increased by the rate of GST applicable at that time and is payable by the Customer.
11. Delivery, Handling & Re-stocking Charges
The Customer shall pay the delivery and handling charges for goods as follows:
(a) Within Australia:
(i) orders over $1,000.00 (GST exclusive) will be delivered without charge, provided the goods are delivered to the Customer’s usual place of business;
(ii) orders between $250.00 – $1,000.00 (GST exclusive), or orders for delivery other than to the Customer’s usual place of business, will be subject to a delivery charge to be invoiced to the Customer in the amount notified by Tomkin at the time of order (with the amount notified subject to changes in the rates charged by Tomkin’s contract carriers); and
(iii) orders less than $250.00 (GST exclusive) collected by the Customer from Tomkin’s warehouse will be subject to a handling fee of $25.00.
(b) Outside Australia: all orders will be delivered on an ex-works basis. Freight, insurance, delivery, storage, taxes and all other charges, duties, expenses and imposts must be paid by the Customer.
(c) The Customer shall pay the GST on the delivery and handling charges. A re-stocking fee is payable by the Customer if goods reserved or held (“pack & hold”) by Tomkin at the Customer’s request are cancelled before delivery, whether or not the goods have left the
warehouse. The re-stocking fee is 20% of the value of the goods cancelled at the time of cancellation.
12. Delivery and Returns
(a) The times quoted for delivery are estimates only and Tomkin accepts no liability for failure or delay in delivery of goods.
(b) The Customer is not relieved of any obligation to accept or pay for goods by reason of any delay in delivery unless agreed by Tomkin.
(c) Risk in accepting the goods shall pass on delivery to the Customer. Delivery will be deemed to have taken place upon the goods being delivered to the Customer at the address specified on the order.
(d) Other than in the case of valid claims under Consumer Guarantees, the return of goods will not be accepted except by prior agreement of Tomkin. If a return of goods is agreed by Tomkin, Tomkin will issue a credit note for the returned goods subject to the following terms:
(i) no return of goods will be accepted without Tomkin’s prior consent and due authorisation as set out in paragraph (d)(ii);
(ii) if authorisation for a return of goods is granted, the Customer will be advised of a Return Authorisation Number (“RAN”) and the RAN must be included on all paperwork relevant to the return of the goods including the consignment note;
(iii) a RAN is issued by Tomkin in good faith and in reliance on the Customer’s information. However, the processing of the claim and issue of any credit note is subject to the goods being returned in their original form and original packaging;
(iv) any credit note issued will be subject to, and after deduction of, a 20% re-stocking fee and after deduction of the original delivery and any return delivery charge (if applicable); and
(v) the Customer is not entitled to cash refund for the goods.
13. Claims for Short Deliveries, Incorrect Goods, Defective Goods and Change of mind
(a) The Customer must notify Tomkin in writing (including the invoice/picking slip number) of all claims for short deliveries, incorrect goods or defective goods or change of mind, within 5 working days of receipt by the Customer.
(b) To the extent permissible by law, the Customer agrees that Tomkin is entitled to reject any claims received outside this period.
(c) Subject to the above, Tomkin will, in its discretion, make good the short delivery, replace the goods or issue a credit note.
(d) The goods must be retained by the Customer for physical inspection in person by Tomkin’s authorised agent or representative.
14. Claims for Breakages of Crockery and/or Glassware
(a) Subject to Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”), Tomkin will not accept breakage claims for crockery and/or glassware unless these goods were purchased in full cartons.
(b) The goods must be retained by the Customer for physical inspection in person by Tomkin’s authorised agent or representative.
(c) Tomkin is entitled to reject any claim for broken goods where the Customer has not kept or made the goods available for its inspection.
(d) Subject to the above, Tomkin will, in its discretion, replace the broken goods or issue a credit note.
15. Promotional Material and On-Sale
(a) Tomkin may provide the Customer with product display stands and other point of sale material (“the Promotional Material”) to assist the Customer in the sale of goods purchased from Tomkin.
(b) The Customer acknowledges and agrees that the Promotional Material belongs to Tomkin and may only be used in the promotion of goods purchased from Tomkin.
(c) If the Customer, in breach of clause 15(b), misuses the Promotional Material or otherwise loses or damages it, then the Customer shall be liable to and agrees to pay Tomkin the value of the Promotional
Material as indicated on Tomkin’s invoice or otherwise advised by Tomkin.
(d) The Customer agrees that, in the event of the on-sale of any goods to third parties, it must not make any representations to third parties relating to the goods on behalf of Tomkin or bind Tomkin to any representations. To the extent permitted by law, Tomkin excludes all liability with respect to any claim, loss or damage incurred by a third- party buyer of the goods as a result of any such representation.
16. Intellectual Property
(a) Tomkin is the owner of trade marks, business names, designs, copyright and other intellectual property rights used in connection with its business and the goods, including copyright in the various images and names associated with its goods (“the Intellectual Property”).
(b) The Customer acknowledges and agrees that:
(i) the Intellectual Property is and remains at all times the property of Tomkin; and
(ii) it may not use the Intellectual Property otherwise than in the promotion of goods purchased from Tomkin to the extent permitted by Tomkin.
(a) With the exception of Consumer Guarantees and any warranty expressly given in writing by Tomkin, to the extent permitted by law, Tomkin excludes all other terms, warranties, conditions and representations, whether express or implied in connection with the goods supplied and any order placed by the Customer.
“Consumer Guarantees” means a right or guarantee the Customer may have under Australian Consumer Law or other rights in relation to the supply of goods (such as terms implied into a contract) that cannot lawfully be excluded.
(a) To the extent permitted by law, Tomkin shall not be liable to the Customer for:
(i) loss of profit or business;
(ii) loss of opportunity or goodwill;
(iii) loss resulting from a claim by a third party; or
(iv) loss, damage or fault arising out of incorrect or inappropriate use of the goods,
whether direct, indirect or consequential; and
(v) loss, damage or cost incurred that is indirect or consequential whether arising in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise,
in relation to or in connection with any Customer order or any goods supplied to the Customer by Tomkin.
(b) Subject to applicable law, the liability of Tomkin arising from the goods (including the supply and use of the goods) is limited, at Tomkin’s option, to:
(i) the replacement of the goods;
(ii) the repair of the goods; or
(iii) the issue of a credit note for the value of the goods.
(a) Until full payment in cleared funds is received by Tomkin for all goods supplied by it to the Customer, as well as all other amounts owing to Tomkin by the Customer, under the Terms of Trade, any order made the Terms of Trade or any other agreement between the Customer and Tomkin:
(i) legal title and property in all goods supplied by Tomkin remain vested in Tomkin and do not pass to the Customer;
(ii) the Customer must, where reasonably practicable, store the goods separately and in such a manner and maintain any labelling and packaging of Tomkin, so that the goods are clearly and readily identifiable as the property of Tomkin;
(iii) the Customer must not sell the goods except in the ordinary course of the Customer’s business;
(iv) the Customer will hold that part of the proceeds of the goods received from its customers on trust for Tomkin. Such part will be deemed to equal in dollar terms the amount owing by the Customer to Tomkin for all goods supplies at the time of the receipt of the proceeds. The Customer will keep Tomkin’s proportion of the proceeds of sale separately such that they are clearly traceable and identifiable; and
(v) in addition to any rights Tomkin may have under Chapter 4 of the Personal Property Securities Act 2009 (Cth) (“PPS Act”), Tomkin may, at any time, demand the return of the goods and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the goods may be located in order to search for and remove the goods without committing a trespass, even though they may be attached or annexed to other goods or land not the property of Tomkin, and for this purpose the Customer irrevocably licenses Tomkin to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies Tomkin from and against all loss suffered or incurred by Tomkin as a result of exercising its rights under this clause 19(a). If there is any inconsistency between Tomkin’s rights under this clause 19(a) and its rights under Chapter 4 of the PPS Act, this clause 19(a) prevails.
(b) The Customer must, at its own cost, insure and keep insured the goods against such risks as a prudent owner of the goods would insure at their full cost price, with a reputable insurance company.
(a) Unless a contrary intention appears, words or expressions used in this clause 20 that are defined in the PPS Act have the same meaning as given to them in the PPS Act.
(b) The Customer acknowledges and agrees that, until Tomkin has received payment for all amounts owing to it by the Customer, Tomkin has:
(i) a purchase money securities interest (as defined in section 14 of the PPS Act) in the goods presently supplied and in the future by Tomkin to the Customer; and
(ii) a security interest (as defined in section 12 of the PPS Act) in relation to any other amounts owed by the Customer to Tomkin.
(c) The security interests arising under this clause 20 attach to the goods when the Customer obtains possession of the goods and the parties confirm that they have not agreed that any security interest arising under this clause 20 attaches at any later time. Tomkin may register its security interests in the PPSR and where necessary amend its registrations from time to time.
(d) Tomkin may apply for any registration, or give any notification, in connection with the security interests arising under this clause 20 and the Customer must promptly, upon Tomkin’s request, do any thing (including, without limitation, signing and producing documents, getting documents completed or signed, obtaining consents and supplying information) to:
(i) ensure that any such security interest in favour of Tomkin is at all times enforceable, perfected (including, where applicable, by control as well as by registration) and otherwise effective, and ranks as a first priority security interest;
(ii) enable Tomkin to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest; and
(iii) enable Tomkin to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the PPS Act.
(e) All costs and expense arising as a result of actions taken by either party pursuant to this clause 20 will be for the account of the Customer. Within five days of a written request, the Customer must pay to Tomkin any costs or expenses incurred or to be incurred in connection with to this clause 20.
(f) If Chapter 4 of the PPS Act applies to the enforcement of the security interest created under the Terms of Trade, the Customer agrees that the following provisions of the PPS Act will not apply, to the extent permitted by law:
(i) the right to receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPS Act;
(ii) section 142 (redemption of collateral); and
(iii) section 143 (reinstatement of security agreement).
(g) Tomkin does not need to give the Customer any notice required under the PPS Act (including, without limitation, a notice of a verification statement under section 157 of the PPS Act) unless the requirement for the notice cannot be excluded.
(h) Neither party will disclose to a person or entity that is not a party to the Terms of Trade information of the kind mentioned in section 275(1) of the PPS Act unless section 275(7) of the PPS Act applies or that information is publicly available.
(i) Nothing in this clause 20 prevents Tomkin from taking collection action or legal action against the Customer to recover any amounts outstanding from time to time.
(a) Whilst all care has been taken, Tomkin will not be bound by any errors or omissions which may appear in any of its invoices and statements or its price lists, catalogues or other promotional material.
(b) No time or other indulgence that Tomkin may give to a Customer shall affect or limit the rights of Tomkin under the Terms of Trade except to the extent that Tomkin expressly waives the same in writing.
(c) Any terms contained in the Customer’s Order or other document issued by either Tomkin or the Customer which are inconsistent with the Terms of Trade shall, to the extent of the inconsistency, have no legal effect.
(d) If any term or part of the Terms of Trade is found to be void, illegal or unenforceable it shall be construed as being severed from the Terms of Trade and the remaining terms shall continue in full force and effect.
The parties agree to submit to and be bound by the laws and courts in the State of New South Wales.
The Privacy Officer PO Box 501
Double Bay NSW 1360 Phone +61286654675
Effective as at February 2020.