Terms of Trade
Dawborn Steels Trading Pty Ltd (Dawborn Steels) Terms of
Trade (Terms) Version: 06/05/24
The Customer has read, understood and agrees to these Terms. The parties agree, these Terms apply to all
transactions between Dawborn Steels and the Customer and these Terms, together with any terms set out in
any Sales Contract, form the agreement between the parties (Agreement) under which Dawborn Steels
agrees to provide and the Customer agrees to accept and pay for the Goods. To the extent of any
inconsistency, the terms of the Sales Contract prevails over these Terms.
To the extent that the context permits, capitalised terms not defined in these Terms have the same meaning
as specified in the Sales Contract as appropriate. Dawborn Steels and the Customer agree:
Orders and Acceptance of Orders
1. On receipt of a request to supply Goods from the Customer, Dawborn Steels will provide a Quote in writing
which may be in the form of a Sales Contract to the Customer.
2. Unless the Customer confirms within one Business Day of the Quote being received it wishes to proceed
with the purchase of the Goods and enters into a Sales Contract within 24 hours of acceptance of receipt of
the Quote, Dawborn Steels reserves the right to review and update the Pricing in the Quote and/or Sales
Contract as appropriate.
3. To accept or enter into a Sales Contract, it must be accepted or signed by an authorised representative of
the Customer. The Customer represents, acknowledges and agrees it is the Customer’s responsibility to
ensure that only its authorised representatives place and accept orders for Goods with Dawborn Steels and
that Dawborn Steels is entering into these Terms in reliance on this representation.
4. On the Customer’s written acceptance of the Quote and/or Sales Contract and payment of any deposit
required under the Sales Contract, Dawborn Steel will order the Goods from its supplier where those Goods
are not already in stock.
5. As most orders of Goods are specific to meet an individual Customer’s needs, once Dawborn Steels has
placed an order for Goods with its supplier, the Sales Contract cannot be terminated by the Customer without
the prior written consent of Dawborn Steels.
6. Where Dawborn Steels agrees in writing to end a Sales Contract, the Customer indemnifies Dawborn
Steels against any Losses Dawborn Steels suffers or incurs as a result of the cancellation of the Sales
Contract including without limitation, any out of pocket expenses, consequential loss and loss of profit.
7. The Customer acknowledges and agrees:
a. these Terms and the terms in the Sale Contract set out the only contractual terms governing the supply of
Goods by Dawborn Steels to the Customer;
b. if the Customer has standard terms and conditions of trade, those terms do not apply to the supply of
Goods by Dawborn Steels to the Customer; and
c. these Terms apply to each Sales Contract entered into by the parties.
Customer’s Obligations
8. When placing an order for Goods, the Customer must either nominate a delivery address or, advise that
the Customer will arrange to collect the Goods from Dawborn Steels’ premises.
9. Where the Goods are to be delivered to the Customer, Dawborn Steels will confirm the Customer’s delivery
address and estimated date for delivery in the Sales Contract. Where the Customer is collecting the Goods
from Dawborn Steels, Dawborn Steels will nominate the estimated delivery date and confirm the Goods are to
be collected from its premises.
10. Any costs incurred by Dawborn Steels in reliance on incorrect or inadequate information contained in a
request for a Quote or Sales Contract may result in the imposition of additional charges being added to the
Pricing payable by the Customer under the Sales Contract.
11. The Customer acknowledges and agrees the estimated delivery date is an estimate only and it will not
bring a Claim for any Loss suffered or incurred by it or any third party as a result of the estimated delivery
date not being met.
12. Dawborn Steels will notify the Customer as soon as practicable of its actual delivery date once
known (Actual Delivery Date). If the Goods are being delivered to the Customer’s delivery address, the
Customer must ensure it has adequate staff available at the delivery premises to accept the delivery of Goods
and to unload the Goods on the Actual Delivery Date. If the Goods are being collected from Dawborn Steels’
premises, the Customer must collect the Goods on the Actual Delivery Date unless another date is agreed to
in writing.
13. The Customer will ensure any contractors, employees or agents it sends to collect Goods from Dawborn
Steels’ premises will comply with Dawborn Steels policies and all lawful directions received from Dawborn
Steels’ officers, employees, agents or contractors including those relating to workplace safety and
occupational health and safety.
14. The Customer must pay Dawborn Steels the Pricing in full for the Goods within 30 days of the end of the
month that the invoice is dated, unless different Payment Terms are set out in the applicable Sales Contract,
in which case, the Payment Terms in the applicable Sales Contract prevail but only for that Sales Contract.
15. The Customer acknowledges Dawborn Steels may change these Terms from time to time for legitimate
business reasons. Any changes will be published on Dawborn Steels’ website and will take effect 14 days
after the date published. The Customer agrees to check Dawborn Steels’ website regularly for changes to the
Terms and before it enters into any Sales Contract, to ensure it is aware of any changes to the Terms before
accepting the Sales Contract. If the Customer does not agree to the changed Terms it must not accept the
Sales Contract. If the Sales Contract is accepted, then the Customer acknowledges and agrees it is providing
its consent to the changed Terms.
Customer Insolvency Event
16. The Customer undertakes to notify Dawborn Steels of any step or proposed step taken by any creditor or
financier of the Customer of which the Customer becomes aware, which is reasonably likely to result in the
occurrence of an Insolvency Event as soon as reasonably practicable and in any event within 24 hours of the
Customer becoming aware of the step or proposed step being taken.
17. On the Customer suffering an Insolvency Event, the Customer is in default of these Terms.
Rolling Forecasts
18. For Customers requiring Dawborn Steels to hold significant quantities of Goods in Australia in advance of
placing orders, those Customers agree to provide Dawborn Steels with yearly forecasts of Goods required
and quarterly updates of its anticipated stock requirements for the coming quarter expected to be ordered
from Dawborn Steels during that period. The Customer also agrees to notify Dawborn Steels as soon as
practicable of any changes to its anticipated stock requirements. The Customers who must comply with
clauses 18 and 19 will be advised of this requirement by Dawborn Steels.
19. Due to the cost to Dawborn Steels to carry these Goods in advance of purchase, the estimates provided
under clause 18 are binding on the Customer and the Customer must purchase 100% of the Goods set out in
the quarterly forecast each quarter, unless Dawborn Steels has, in advance, agreed in writing, to alternative
purchasing arrangements for that quarter.
Risk, Returns and Title in Goods
20. Risk in the Goods passes to the Customer either: from the time Dawborn Steels delivery truck arrives at
the Customer’s delivery address or; at the time the Customer’s delivery truck arrives at Dawborn Steels’
premises to pick up the Goods.
21. The Customer must promptly notify Dawborn Steels in writing (but in any event no later than 5 Business
Days following the Actual Delivery Date) of any faults or defects in the Goods delivered. If the Customer fails
to advise Dawborn Steels in writing within this timeframe of any fault or defect in the Goods or failure of
Goods to accord with the Customer's Sales Contract, the Customer is deemed to have accepted the Goods
and to have accepted that the Goods are not faulty, defective and accord with the Customer's Sales Contract.
Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL
where those statutory rights apply to the Customer.
22. If the Customer determines any of the Goods are defective or damaged within 5 business days of being
delivered, the Customer must immediately notify Dawborn Steels in writing of the fault or defect and return
any damaged Goods to Dawborn Steels within 10 Business Days of delivery. The Customer must pay for the
cost of returning the damaged or defective Goods to Dawborn Steels’ premises. If on receipt of the damaged
or defective Goods Dawborn Steels agrees with the Customer’s assessment the Goods are damaged or
defective, it will raise a credit note against the Customer’s account.
23. Title in the Goods supplied to the Customer under these Terms and any Sales Contract does not pass to
the Customer until all monies (including any Pricing owing for those Goods and any other money owing in
respect of other transactions between Dawborn Steels and the Customer) which are due and payable to
Dawborn Steels by the Customer, have been fully paid.
24. Where Goods are supplied by Dawborn Steels to the Customer without payment in full of all monies owing
in respect of the Goods, the Customer:
a. is a bailee of the Goods until title in them passes to the Customer;
b. irrevocably appoints Dawborn Steels, its attorney to do all acts and things necessary to ensure Dawborn
Steels’ retention of title to the Goods including the registration of any security interest in favour of Dawborn
Steels with respect to the Goods under applicable law;
c. must be able on demand by Dawborn Steels to separate and identify as belonging to Dawborn Steels, all
Goods supplied by Dawborn Steels from other goods which are held by the Customer;
d. must not allow any person to have or acquire any security interest in the Goods;
e. agrees that Dawborn Steels may repossess the Goods if payment is not made in accordance with the
agreed Payment Terms (or such longer time as Dawborn Steels may, in its complete discretion, approve in
writing); and
f. the Customer grants an irrevocable licence to Dawborn Steels or its agents to enter the Customer's
premises in order to recover possession of Goods pursuant to this clause.
24. The Customer indemnifies Dawborn Steels in respect of any damage to property or personal injury which
occurs as a result of Dawborn Steels, its officers, employee, contractors or agents entering the Customer's
premises.
25. Where Goods are supplied by Dawborn Steels to the Customer without payment in full of all monies
payable in respect of the Goods and the Customer makes a new object from the Goods, whether finished or
not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New
Goods), the Customer agrees with Dawborn Steels that the ownership of the New Goods immediately passes
to Dawborn Steels. The Customer will hold the New Goods on trust for Dawborn Steels until payment of all
sums owing to Dawborn Steels whether under these Terms or any Sales Contract have been made and
Dawborn Steels may require the Customer to store the New Goods in a manner that clearly shows the
ownership of Dawborn Steels.
26. For the avoidance of doubt, under clause 25, the ownership of the New Goods passes to Dawborn Steels
at the beginning of the operation or event by which the Goods are converted into, are mixed with or become
part of other goods.
27. Notwithstanding clause 26, the Customer may transfer, sell or dispose of Goods, including New Goods, to
a third party in the ordinary course of business provided that:
a. where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds
the whole of the proceeds of sale less any GST on trust for Dawborn Steels. Those monies must be held in a
separate account, until all amounts owed by the Customer to Dawborn Steels have been paid; or
b. where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the
third party to Dawborn Steels on Dawborn Steels giving the Customer written notice to that effect. For the
purpose of giving effect to the assignment of the Customer’s rights against the third party it irrevocably
appoints Dawborn Steels as its attorney and agrees to ratify any action taken by Dawborn Steels under the
power of attorney.
PPSA
28. Where the PPSA is in force, the Customer acknowledges that these Terms create a security interest
under the PPSA in the Goods supplied by Dawborn Steels to the Customer, and for the avoidance of doubt,
the proceeds of sale of those Goods and any New Goods.
29. The Customer consents to Dawborn Steels effecting a registration of any security interest contemplated or
created by these Terms, including, without limitation, an interest under clauses 23 to 28, on the PPSR (in any
manner Dawborn Steels considers appropriate).
30. The Customer further agrees:
a. to do all things necessary and required by Dawborn Steels to make sure that the security interest is a
perfected ‘purchase money security interest’ under the PPSA;
b. not to allow any third party to acquire a security interest over the Goods.
31. Dawborn Steels’ security interest in the Goods and New Goods is a continuing security and remains in full
force and effect until the date the Customer complies with all of its obligations under these Terms and any
Sales Contract.
32. Where the Customer is in default of its obligations under these Terms or under a Sales Contract, Dawborn
Steels may enforce its security interest and the Customer must take all action reasonably required by
Dawborn Steels, or any attorney, receiver, administrator or liquidator, to assist them.
33. Enforcement of Dawborn Steels’ security interest shall in no way limit Dawborn Steels’ right to pursue any
other contractual or other legal remedies in respect of any default under these Terms or a Sales Contract.
34. To the extent the Goods are for the Customer’s business use, the Customer agrees to the fullest extent
permitted under the PPSA that the Customer has no right:
a. to receive notice of removal of an accession under the PPSA;
b. under Chapter 4 of the PPSA;
c. under the PPSA to receive a copy of any verification statement of a financing statement;
d. without in any way limiting clauses 34a, b or c, the Customer agrees that to the extent permitted under the
PPSA, the Customer waives its right under sections: 95; 96; 118; 120; 121(4); 123; 125; 126; 128; 129; 130;
132; 134; 135; 142 and 143 of the PPSA.
35. Unless otherwise agreed to in writing by Dawborn Steels , the Customer waives to the fullest extent
permitted under the PPSA its right to receive from Dawborn Steels any notice required under the PPSA
(including a notice of a verification statement under section 157, 95, 118, 121 (4), 130, 132 (3) (d) and 132 (4)
of the PPSA.
36. If the PPSA is amended to permit the parties to agree not to comply with or to exclude other provisions of
the PPSA, Dawborn Steels may notify the Customer that any of these provisions are excluded, or that
Dawborn Steels need not comply with any of these provisions.
37. The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation
to the Goods without Dawborn Steels’ prior written consent.
38. Without limiting any other provision of these Terms, if the Customer makes a payment to Dawborn Steels
at any time whether in connection with the supply of Goods or otherwise, Dawborn Steels may at its absolute
discretion apply that payment to satisfy obligations that are not secured, then obligations that are secured, but
not by a purchase money security interest, in the order in which those obligations were incurred, and then
obligations that are secured by a purchase money security interest, in the order in which those obligations
were incurred.
Dawborn Steels Obligations
39. Dawborn Steels will:
a. provide the Goods under the Sales Contract to the Customer in exchange for the payment of the Deposit (if
any), the Pricing and all other fees contained in the Sales Contract or set out in these Terms;
b. supply the Goods in accordance with the Specifications, Quantities and Sizing set out in the Sales
Contract;
c. determine the Actual Delivery Date of the Goods at its absolute discretion and will use its reasonable
endeavours to comply with any estimated delivery date set out in the Sales Contract;
d. not commence supply of Goods to a Customer under a Sales Contract until a commercial credit application
has been provided by the Customer, a credit check is conducted and the results being satisfactory to
Dawborn Steels in its absolute discretion; and
e. only continue to supply Goods under Contracts of Sale where the Customer is not in default under these
Terms and/or under any of its Sale Contracts.
40. Where Goods are being delivered to the Customer’s delivery address, the Pricing under the Sales
Contract will include a Delivery Fee to cover one delivery only. Where the Customer requests the Goods
ordered to be shipped in parts requiring more than one delivery, an additional Delivery Fee will be charged
per delivery. Dawborn Steels will not deliver part shipments of Goods for Customers until the Customer
confirms the request in writing and accepts the additional Delivery Fee in writing.
Interruptions to Supply
41. There may be times Dawborn Steels experiences disruptions to the supply of Goods, such as industrial
action on wharves, customs delays or stoppages or issues with Dawborn Steels’ overseas suppliers, due to
circumstances which may or may not be within its control. Where a potential or actual disruption in supply of
Goods becomes known, Dawborn Steels will use its best endeavours to provide Customers with reasonable
notice of any alteration to estimated delivery dates or Actual Delivery Dates. The parties agree, Dawborn
Steels is not liable to the Customer for any Losses (including consequential loss, damage or loss of profits)
arising, whether directly or indirectly from any interruption, disruption or failure to supply either the whole or
part of any order of Goods under a Sales Contract at any time.
Deposit / Pricing / Invoices
42. On acceptance of the Sales Contract, the Customer must pay any Deposit set out in the Sales Contract
within 7 days of signing the Sales Contract. The Customer acknowledges Dawborn Steels is not required to
place an order with its supplier for the Goods until the Deposit is paid in full. The Deposit invoice will
accompany the Sales Contract.
43. The Deposit should be paid to Dawborn Steels’ bank account shown below in clause 45.
44. Invoices for the Pricing and Delivery Fee (less any Deposit paid) payable for the Goods under each Sales
Contract will be issued at the same time the Customer is notified of the Actual Delivery Date.
45. Any monies owing must be paid in AUD to: Bank Name: National Australia Bank (NAB) – 16 Kingsway,
Glen Waverley, Victoria, 3150, Australia. Account name: Dawborn Steels Trading Pty Ltd BSB 083 266
Account No. 17 469 8402.
46. Invoices may be paid by credit card subject to the Customer agreeing to payment of a surcharge of 2%.
Non Payment of Invoices
47. If any invoice is due but unpaid, Dawborn Steels may withhold the provision of the Goods and any further
Goods ordered until all overdue amounts are paid in full.
48. The Customer is not entitled to retain any money owing to Dawborn Steels notwithstanding any default or
alleged default by Dawborn Steels of these Terms or the Sales Contract, including (but not limited to) the
supply of allegedly faulty or defective Goods, or a delay in the provision of Goods. Nothing in this clause
affects the Customer's rights for any alleged failure of a guarantee under the ACL (if applicable).
49. If an invoice for the Deposit, has not been paid in full within 7 days of the invoice date, or an invoice for Pricing
remains unpaid 30 days after the end of the month in which the invoice is dated, Dawborn Steels may
suspend or cease to provide the Goods or any further Goods under these Terms and/or any Sales Contract
until the outstanding payment and any interest or debts owing under clauses 50 and 51 respectively are
received in full.
50. If an invoice remains unpaid 30 days after the end of the month in which the invoice is dated, Dawborn
Steels may charge the Customer interest at a rate not exceeding the variable retail index interest rate set for
an unsecured NAB business overdraft (NAB Business Overdraft) or where this product no longer exists, the
interest rate is to be substituted with the interest rate of its replacement product , plus 2%, compounding daily
from the date the invoice was issued until it is paid in full.
51. All costs and expenses associated with collecting overdue monies owed by the Customer, including, but
not limited to, legal fees, debt collection agency fees and internal costs and expenses of Dawborn Steels, are
to be paid by the Customer as a debt due and payable under these Terms.
Warranties and Limitation of Liability
52. The Customer warrants it is not a consumer as defined under the ACL and will not be using the Goods for
personal, domestic or household use or consumption.
53. Where the Goods are of the kind ordinarily required for personal, domestic or household use or
consumption, and the Customer is a consumer for the purposes of the ACL, there are statutory guarantees
that cannot be contracted out. These Terms in no way limit the rights of Customers who fall within the
definition of consumer under the ACL in connection with the purchase of the Goods.
Confidentiality
54. During the course of providing the Goods, the parties may have access to each other’s Confidential
Information.
55. Each receiving party must keep confidential the disclosing party’s Confidential Information and must not
disclose the Confidential Information to: any third party except for a permitted purpose under this Agreement;
as required by law, with the prior written consent of the disclosing party; or to an associate of the third party to
the extent they need to know that information for a permitted purpose under this Agreement; and only on the
basis the associate is subject to the same obligations to keep the Confidential Information confidential.
Liability and Limitation of Liability
56. The Dawborn Steels website may from time to time contain hyperlinks to other websites. Such links are
provided for convenience only and Dawborn Steels take no responsibility for the content and maintenance of
or privacy compliance by any link used to a third party website. Any hyperlink used in the Dawborn Steels
website does not imply Dawborn Steels’ endorsement, support, or sponsorship of the operator of that website
nor of the information and/or products which they provide.
57. Dawborn Steels provides no warranty that any result or objective can or will be achieved or attained by
the Goods and it is the Customer’s sole responsibility to ensure the Goods ordered suit the purpose for which
the Goods are being ordered.
58. This document does not exclude, restrict or modify the application of any statutory provision (including a
provision of the ACL) where to do so would:
(a) contravene that statute; or
(b) cause any part of these Terms or any Sales Contract to be void.
59. Dawborn Steels excludes all liability to the Customer or any other person for any special, indirect or
consequential loss arising directly or indirectly out of, or in connection with, its obligations under these Terms
or any Sales Contract, even if Dawborn Steels has been advised by the Customer as to the possibility of such
losses being incurred. The aggregate liability of Dawborn Steels in damages in respect of any act or omission
of Dawborn Steels in connection with its obligations under these Terms or any Sales Contract is capped at
the total amount of the Pricing specified in the relevant Sales Contract. Dawborn Steels limits their liability for
breach of any non-excludable warranty, condition or guarantee that is implied by virtue of any Law to the
supply of the Goods again or the payment of the cost of having the Goods supplied again (the choice of which
is to be at Dawborn Steels’ sole discretion).
Indemnity
60. The Customer indemnifies and will keep indemnified Dawborn Steels from and against all Loss suffered or
incurred by Dawborn Steels, its officers, employees or any third parties arising out of or in connection with the
provision of the Goods supplied by Dawborn Steels to the Customer or the Customer’s breach of these Terms
or any Sales Contract.
Termination
61. If a party is in default under these Terms, the non-defaulting party may give the defaulting party written
notice to rectify the default (Default Notice). If the defaulting party does not rectify the default within 14 days
of receipt of a Default Notice (Default Rectification Period), the non-defaulting party may immediately
terminate these Terms and any Sales Contract.
62. If this Agreement is terminated due to the default of the Customer, no Deposit or Pricing paid in advance
will be refunded to the Customer.
63. Dawborn Steels may end a Sales Contract immediately on the happening of an Insolvency Event.
64. Where the Customer is still in default following the Default Rectification Period in accordance with clause
61, or suffers an Insolvency Event, (either date being a Default Date), then on the Default Date, all invoices
and any moneys owing by the Customer to Dawborn Steels will become immediately due and payable and
Dawborn Steels may cease the supply of all Goods under any Sales Contract.
65. Where the Customer is in default and Dawborn Steels terminates any Sales Contract, on the termination
date, Dawborn Steels must be paid any monies owing for any Goods ordered but not yet delivered and any
other monies owing under this Agreement. The parties agree, the invoice of Dawborn Steels disclosing the
outstanding monies owing for Goods ordered and any other monies owing, for the purposes of this clause, is
sufficient evidence those Fees and monies are owed by the Customer to Dawborn Steels.
66. Termination of these Terms and any Sales Contract does not affect any rights a party has against any
other party including, without limitation, any accrued rights in respect of any past breach.
GST
67. Except for terms which are defined in these Terms, capitalised expressions set out in the clauses below
have the same meaning as those expressions in the A New Tax System (Goods and Goods Tax) Act 1999.
68. Any Pricing and other monies specified in this Agreement are exclusive of GST unless stated otherwise.
69. The Customer must reimburse to Dawborn Steels any GST payable by Dawborn Steels on a taxable
supply made by Dawborn Steels to the Customer.
70. A party’s right to payment under these clauses is subject to a valid Tax Invoice being delivered to the
Recipient of the Taxable Supply.
71. Any amount payable under clause 69 must be without deduction or set off.
Force Majeure
72. A party will not be in default of these Terms or a Sales Contract, should a Force Majeure Event occur that
prevents that party from meeting its obligations under this Agreement.
Severability
73. If any term or provision of the documents forming this Agreement are held to be invalid or unenforceable,
they are to be read down so as to be valid or enforceable or, if such reading down is not possible, severed
and the remaining terms will not be affected but will be valid and enforced to the fullest extent permitted by
law.
Assignment
74. Dawborn Steels has the right to assign and transfer to any third party, any of its title, interest, benefit or
rights, under the Terms or any Sales Contract, provided the assignee agrees to assume Dawborn Steels’
duties and obligations owed to the Customer.
75. The Customer is not to assign, or purport to assign, any of its obligations or rights under the Terms or a
Sales Contract without the prior written consent of Dawborn Steels which is not to be unreasonably withheld.
Rule of Construction
76. In the interpretation of this document, no rule of construction applies to the disadvantage of the party
preparing this document on the basis that it put forward this document or any part of it.
Amendments
77. Other than as set out in clause 15, these Terms cannot be modified or waived except in writing and
signed by the parties.
Entire Agreement
78. These Terms and any Sales Contract accepted by the Customer, contain everything the parties have
agreed on in relation to the matters dealt with in those documents and apply to the exclusion of all other terms
and conditions and supersede all prior discussions, representations and arrangements relating to the supply
of the Goods.
Counterparts
79. This Agreement and any Sales Contract may be executed in any number of counterparts.
Jurisdiction
80. This Agreement is governed by the law applicable in Victoria, Australia. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
Definitions
81. ACL means The Australian Consumer Law as set out in Schedule 2 of the Competition and
Consumer Act (Cth) (2010) Act.
82. AUD means Australian Dollars in cleared funds.
83. Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in
contract, tort or otherwise).
84. Confidential Information means any information in respect of the disclosing party, whenever disclosed
and whether disclosed before or after the date of this Agreement first, other than information that:
a. at the date of this Agreement, was generally and publicly available, or subsequently becomes so available
other than by breach of any duty or obligation owed to the disclosing party; or
b. at the time it was disclosed to the receiving party, was in the possession of the receiving party lawfully and
without breach of any duty or obligation owed to the disclosing party; or
c. subsequently becomes so available from another source, not subject to any duty or obligation as to
confidence, and includes any copy made or created by the receiving party or any third party on its behalf.
85. Customer means the Customer identified as the customer in the Application for Commercial Credit
Account and any person or entity identified in these Terms or in the Sales Contract as the Customer.
86. Delivery Fee means the fee charged by Dawborn Steels to deliver the Goods to the Customer’s delivery
address nominated on or about the time of acceptance of the Quote and includes any additional delivery fees
the Customer may incur where the Customer changes the original delivery address or the Goods need to be
delivered more than once.
87. Force Majeure Event means any act, circumstance or omission over which the party affected by the event
could not reasonably have exercised control.
88. Goods means the goods specified in the Sales Contract set out under Specifications, Quantities and
Sizing.
89. Insolvency Event means in relation to a party, any of the following events:
(a) a party assigns any of its property for the benefit of creditors or any class of them;
(b) an encumbrancee notifies a party in writing of an immediate intention to take possession, or actually takes
possession, of any assets of the party or exercises any power of sale;
(c) a party ceases, suspends or threatens to cease or suspend the conduct of a majority of its business, or
disposes of or threatens to dispose of its assets, except for the purposes of a solvent reconstruction or
amalgamation;
(d) any security interest is enforced against a party, or the party receives notification from another party of an
intention to immediately seek enforcement;
(e) a party initiates any formal process to obtain protection or is granted protection from its creditors under
any applicable legislation;
(f) a resolution is passed by a party to appoint an administrator or an administrator of the party is appointed;
(g) an order is made that the party it be wound up;
(h) an order is made appointing a liquidator or a provisional liquidator to the party;
(i) a party resolves to wind itself up or otherwise dissolve itself, or gives notice of its intention to do so, except
for the purposes of a solvent reconstruction or amalgamation or is otherwise wound up or dissolved;
(j) an order is made or a resolution is passed for a party to enter into any arrangement, compromise or
composition with or assignment for the benefit of its creditors or any class of them, except for the purposes of
a solvent reconstruction or amalgamation;
(k) a party is, or states that it is, or under applicable legislation is taken to be, unable to pay its debts when
they fall due (other than as a result of a failure to pay a debt or claim the subject of a dispute in good faith) or
stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(l) a receiver, receiver and manager, administrator, controller or similar officer of any of the assets or the
whole or any part of the undertaking of a party is appointed;
(m) a party is the subject of an event described in section 459C(2) of the Corporations Act 2001;
(n) a party receives service of a valid notice of demand for payment of a debt from any creditor;
(o) a party, being an individual, commits an act of bankruptcy or becomes insolvent; or any event that is
analogous or having a substantially similar effect to any of the events specified in this definition.
90. Liabilities means all liabilities (whether actual, contingent or prospective), debts, Claims, losses,
damages, costs, outgoings and expenses of whatever description.
91. Losses means in relation to any person, damage, loss, cost, expense or Liabilities including all legal and
professional expenses incurred in connection with investigating, disputing, defending or settling any Claim or
proceeding relating to any fact, matter or circumstance, incurred by the person, however arising (including
contractual, tortious, legal, equitable or pursuant to statute) and whether it is present or future, fixed or
unascertained, actual or contingent.
92. PPSA means the Personal Properties Securities Act 2009 (Cth) and any regulations in force at any time
under the PPSA, including the Personal Property Securities Regulations 2010 (Cth), as may be amended and
restated from time to time.
93. PPSR means Personal Properties Securities Register.
94. Pricing means the fees set out in any Sales Contract. Where a Sales Contract has been accepted by the
Customer in writing, the fees in the Sales Contract prevail over any pricing set out in a Quote.
95. Quote means any document in writing prepared by Dawborn Steels setting out the Pricing for the Goods
the Customer needs and this document may include any other terms specific to the Customer’s order of
Goods.
96. Sales Contract means the Sales Contract signed by the parties or, where a Sales Contract is not signed
by the Customer but the Customer has proceeded to confirm the acceptance of the Quote in writing, those
written documents together will form the Sales Contract.