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Terms of trade

1. Definitions and interpretation
1.1   Definitions

ACL means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Additional Charge means:

  1. fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with Elastotec’s then current prices; and
  2. expenses incurred by Elastotec, at the Customer’s request or reasonably required as a result of the Customer’s conduct.

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods are provided.

Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.

Defect means a failure of any Goods to materially conform to the description and specifications for the Goods set out in an Order.

Elastotec means Elastotec Pty Limited (ACN 137 437 239) and its Related Bodies Corporate.

Goods means any goods supplied by Elastotec including those supplied in the course of providing Services.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.

Loss includes, but is not limited to, costs (including party to party legal costs and Elastotec’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.

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

PPSR means the Personal Property Securities Register established pursuant to the PPSA.

Quote means a written description of the Goods or Services to be provided, an estimate of Elastotec’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Services means the services to be provided by Elastotec to the Customer in accordance with a Quote and these terms of trade.

1.2  Interpretations
In these terms of trade, unless the context otherwise requires:
  1. a reference to writing includes email and other communication established through Elastotec’s website (if any);
  2. the singular includes the plural and vice versa;
  3. a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
  4. a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
  5. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
  6. headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
  7. if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
    1. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
    2. in all other cases, must be done on the next Business Day.
2. General
  1. These terms of trade apply to all transactions between the Customer and Elastotec relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
  2. The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
  3. Elastotec may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
3. Quotes and Price Lists
  1. Elastotec may provide the Customer with a Quote or Price List. Any Quote or Price List issued by Elastotec is valid for 90 days from the date of issue.
  2. Unless otherwise expressly agreed in writing, a Quote or Price List does not include charges for delivery or installation of the Goods.
  3. Quotes and Price Lists are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to Elastotec.
  4. Following provision of a Quote to the Customer, Elastotec is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing an Order form and returning the form to Elastotec.
  5. An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the ACL, this estimate is not binding upon Elastotec.
4. Orders
  1. Every Order by the Customer for the provision of Goods or Services must be submitted in writing to Elastotec.
  2. An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods or Services ordered and Elastotec’s Quote. Any costs incurred by Elastotec in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
  3. Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
  4. Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by Elastotec relating to that Order.
  5. Elastotec may in its absolute discretion refuse to provide Goods or Services where:
      1. Goods are unavailable for any reason whatsoever;
      2. credit limits cannot be agreed upon or have been exceeded; or
      3. payment for Goods or Services previously provided to the Customer or any Related Body Corporate of the Customer or to any other party who is, in the reasonable opinion of Elastotec, associated with the Customer under the same or another supply contract, has not been received by Elastotec.
  6. An Order cannot be cancelled without the prior written consent of Elastotec. Where an Order is cancelled, the Customer indemnifies Elastotec against any Losses incurred by Elastotec as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
5. Variations
  1. The Customer may request that its Order be varied by providing a request in writing to Elastotec. A request for a variation must be agreed to in writing by Elastotec in order to have effect.
  2. If the Customer wishes to vary its requirements after a Quote has been prepared by Elastotec or after the placement of an Order, Elastotec reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by Elastotec in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
  3. Elastotec has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
6. Invoicing and payment
  1. Elastotec may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
    1. prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where Elastotec has not previously carried out work for the Customer or where Elastotec chooses to do so;
    2. upon completion of the provision of the Goods or Services or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Elastotec’s charge for the work performed in completing the Order and for any Additional Charges.
  1. The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
    1. the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges; or
    2. where no Quote has been provided by Elastotec, Elastotec’s usual charges for the Goods or Services (or both) as described in the Order.
  1. The Customer must pay an invoice issued by Elastotec to Elastotec before the 30th of the Month following the invoice date unless otherwise agreed in writing.
  2. If any invoice is due but unpaid, Elastotec may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
  3. Elastotec may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Elastotec.
  4. The Customer is not entitled to retain any money owing to Elastotec regardless of any default or alleged default by Elastotec of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the ACL.
  5. The Customer is to pay Elastotec on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to Elastotec, calculated daily.
  6. All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Elastotec, are to be paid by the Customer as a debt due and payable under these terms of trade.
  7. The Customer and Elastotec agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
7. Additional Charges
  1. Elastotec may require the Customer to pay Additional Charges in respect of Costs incurred by Elastotec as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by Elastotec in order for it to provide the Goods or Services within the specified time frame (if any).
  2. The imposition of Additional Charges may also occur as a result of:
    1. cancellation by the Customer of an Order where cancellation results in Loss to Elastotec;
    2. the costs of storage where delivery of Goods is delayed for a period of more than 14 days after Elastotec notifies the Customer that the Goods are ready for delivery where such delay is caused by any reason beyond Elastotec’s reasonable control;
    3. photocopying, courier, packing or handling charges not included in the Quote;
    4. Government or council taxes or charges not included in the Quote; or
    5. additional work required by the Customer or any other occurrence which causes Elastotec to incur costs in respect of an Order additional to the quoted cost.
8. Acceptance of Goods

If the Customer fails to advise Elastotec in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 7 Business Days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the ACL.

9. Title and risk
  1. Risk in Goods passes to the Customer immediately upon delivery.
  2. Property and title in Goods supplied to the Customer under these terms of trade do not pass to the Customer until all money (including money owing in respect of other transactions between Elastotec and the Customer) due and payable to Elastotec by the Customer have been fully paid.
  3. Where Goods are supplied by Elastotec to the Customer without payment in full, the Customer:
      1. is a bailee of the Goods until property in them passes to the Customer;
      2. irrevocably appoints Elastotec to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Elastotec with respect to the Goods under applicable law;
      3. must be able upon demand by Elastotec to separate and identify as belonging to Elastotec the Goods supplied by Elastotec from other goods which are held by the Customer;
      4. must not allow any person to have or acquire any security interest in the Goods;
      5. agrees that Elastotec may repossess the Goods if payment is not made within 60 days (or such longer time as Elastotec may, in its complete discretion, approve in writing) of the supply of the Goods; and
      6. the Customer grants an irrevocable licence to Elastotec or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies Elastotec for any damage to property or personal injury which occurs as a result of Elastotec entering the Customer’s premises.
10. PPSA
10.1 Definitions in this clause

Any term or expression which is used in this clause 10 and which is defined in the PPSA has the meaning given to that term or expression in, or in the context of, the PPSA.

10.2 Security Interest in Goods
  1. Where Goods are supplied by Elastotec to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Elastotec in respect of those Goods, the Customer grants a Security Interest in the Goods delivered to the Customer from time to time, and the proceeds of their sale, so as to secure the punctual payment to Elastotec of all outstanding moneys payable.
  2. Elastotec may effect and maintain registrations on the PPSR in respect of the security interests created or contemplated by clause 2(a). The Customer will do all things necessary including providing all information required by Elastotec to enable it to register a financing statement on the PPSR.
  3. The Customer waives its right under section 157 of the PPSA to receive a verification statement in relation to any registration on the PPSR of a security interest in respect of the Goods and their proceeds.
  4. The Customer and Elastotec agree to contract out of the enforcement provisions referred to in section 115(1) of the PPSA (to the extent permitted by section 115 and if they would otherwise have applied to the enforcement of a security interest arising under or in connection with this Agreement).
  5. The Customer and Elastotec agree, to the extent permitted by section 115(7) of the PPSA, to contract out of Part 4.3 of the PPSA, other than sections 123(1), 126, 128, 129(1), 133, 134(1), 136(1) and 136(2)).
11. Intellectual Property Rights
  1. The Customer acknowledges and agrees that all Intellectual Property Rights in respect of the Goods are owned exclusively by and vest automatically in Elastotec upon creation.
  2. Subject to payment of all invoices due in respect of the Goods or Services, Elastotec grants to the Customer a royalty-free, non-exclusive, irrevocable, non-transferable perpetual licence to use the Intellectual Property Rights in the Goods for the use, repair and maintenance of the Goods only. The Customer must not without Elastotec’s prior written consent, decompile, disassemble, reverse engineer, manufacture, duplicate or modify any of the Goods or components thereof nor reproduce, copy or disclose nor permit other to reproduce, copy or disclose any of Elastotec’s designs, specifications or drawings.
  3. In the event of any claim for infringement of Intellectual Property Rights relating to any Goods or components thereof (other than goods or components based on a specification or design provided by the Customer) Elastotec will at its discretion either replace or modify such goods or components with non-infringing goods or components or procure for the Customer the right to use such goods or components. Elastotec will not be liable for any Losses arising from use or non-use of such infringing goods or components.
12. Agency and assignment
  1. The Customer agrees that Elastotec may at any time appoint or engage an agent to perform an obligation of Elastotec arising out of or pursuant to these terms of trade.
  2. Elastotec has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of Elastotec owed to the Customer under these terms of trade.
  3. The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of Elastotec.
13. Default and Termination
  1. Each of the following occurrences constitutes an event of default:
      1. the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by Elastotec to do so;
      2. the Customer, being a natural person, commits an act of bankruptcy;
      3. the Customer, being a corporation, is subject to:
        1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
        2. a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
        3. the entering of a scheme of arrangement (other than for the purpose of restructuring); and
        4. any assignment for the benefit of creditors;
        1. the Customer purports to assign its rights under these terms of trade without Elastotec’s prior written consent; or
        2. the Customer ceases or threatens to cease conduct of its business in the normal manner.
  2. Where an event of default occurs, except where payment in full has been received by Elastotec, Elastotec may:
      1. terminate these terms of trade;
      2. terminate any or all Orders and credit arrangements (if any) with the Customer;
      3. refuse to deliver Goods or provide further Services;
      4. pursuant to paragraph 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
      5. retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
  3. In addition to any action permitted to be taken by Elastotec under paragraph 13(b), on the occurrence of an event of default all invoices will become immediately due and payable.
14. Warranties
  1. The maximum aggregate liability of Elastotec for all proven Losses arising out of this Agreement, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, is limited to:
    1. in respect of Goods supplied pursuant to this Agreement, resupplying the Goods or reimbursing the Customer the Price paid for the Goods; and
    2. in respect of any Services provided pursuant to this Agreement, resupplying the Services (at no cost to the Customer) or paying the Customer an amount equal to the cost of having the Services provided again.
  1. To the fullest extent permissible at law, Elastotec is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if Elastotec has been advised of the possibility of damages.
15. Liability
  1. The maximum aggregate liability of Elastotec for all proven Losses arising out of this Agreement, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, is limited to:
    1. in respect of Goods supplied pursuant to this Agreement, resupplying the Goods or reimbursing the Customer the Price paid for the Goods; and
    2. in respect of any Services provided pursuant to this Agreement, resupplying the Services (at no cost to the Customer) or paying the Customer an amount equal to the cost of having the Services provided again.
  1. To the fullest extent permissible at law, Elastotec is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if Elastotec has been advised of the possibility of damages.
16. Force majeure
  1. If circumstances beyond Elastotec’s control prevent or hinder its provision of the Goods or Services, Elastotec is free from any obligation to provide the Goods or Services while those circumstances continue. Elastotec may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
  2. Circumstances beyond Elastotec’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
17. Dispute resolution
  1. If a dispute arises between the Customer and Elastotec, the following procedure applies:
    1. A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
    2. A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
    3. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
  1. If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 10 Business Days (or other period as agreed).
  2. Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
  3. Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
  4. The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
18. Miscellaneous
  1. These terms of trade are governed by the laws of the state of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of the state of New South Wales.
  2. These terms of trade and any Quotes and written variations agreed to in writing by Elastotec represent the whole agreement between the parties relating to the subject matter of these terms.
  3. These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
  4. If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
  5. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
  6. A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
  7. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by email before 4 pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
  8. A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
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