TERMS AND CONDITIONS OF TRADE (AUS)

1. Binding terms and conditions

These terms and conditions shall apply to, and bind each person or entity to whom the Supplier sells or supplies goods or services(you or your, in these terms and conditions) in respect of, all sales and supplies by the Supplier to you, and all purchases by you from the Supplier, of goods and services, and all other transactions between the Supplier and you.

2. Orders and resulting contracts

(a) Orders for goods or services you place with the Supplier will only be accepted by the Supplier upon and subject to these terms and conditions, and no variation shall apply to these terms and conditions except with the written agreement of the Supplier or its authorised person. Each order you place with the Supplier must identify the goods or services ordered, the quantity required and refer to a current written quotation (if any) issued by the Supplier to you pursuant to which the order is made. The Supplier may, in its absolute discretion, accept or reject an order of yours. It may also accept only part of an order.

(b) A contract shall be deemed to have been entered between you and the Supplier upon acceptance in writing by the Supplier of an order (or part thereof), whether such order is written or oral, from you, being a contract for the supply by the Supplier to you, and the purchase by you from the Supplier, of the goods or services which are the subject of the order(to the extent accepted by the Supplier), on and subject to these terms and conditions (contract).

(c) The Supplier may refuse at its discretion to sell or supply goods or services to you at any time, including whether or not part of a contract has been performed, where goods or services are unavailable for any reason, a non – complying order is received or you have defaulted under these terms and conditions.

3. Prices

All prices of goods and services supplied by the Supplier which are quoted in the Supplier ‘s price lists and catalogues are exclusive of GST or any similar impost or tax, unless otherwise specified, and the prices are subject to change without notice. The Supplier reserves its right to invoice the goods or services sold at the revised prices if it so chooses. Unless the price for particular goods notified by the Supplier to you is specifically stated to include GST or any similar impost or tax which may apply in any jurisdiction in respect of the goods, an amount equal to the GST or such other impost or tax is payable by you to the Supplier in addition to the price for those goods notified by the Supplier, when the Supplier invoices you for the additional amount.

4. Suppliers inability to supply

If, for any reason beyond the Supplier’s control, the Supplier cannot supply all of the goods or services under a contract, then the Supplier has the right to cancel all or part of that specific contract and you shall not have any claims against the Supplier for any type of compensation arising out of or in connection with the cancelled contract or the cancelled part of that contract (as applicable), and this is without prejudice to the rights of the Supplier to recover all monies owing to it by you in respect of the un-cancelled part of that contract other contracts that have been fulfilled. You must not cancel an order for goods or services after it has been placed with the Supplier, or cancel a contract, unless agreed to in writing by the Supplier. The decision of the Supplier to agree or not is at its total and unfettered discretion.

5. Return of goods

Without limiting clause 4 of these terms and conditions, you must not return any goods supplied by the Supplier to you or at your direction without:

(a) the consent of the Supplier first being obtained in writing, which must be given by an authorised officer of the Supplier;

(b) a return authorisation number(RAN) being allocated by the Supplier for that authorised return (which it may do in its absolute discretion).

If the Supplier agrees to accept a return of goods and allocates a RAN to them, these goods must be returned to the Supplier at your sole expense in good and saleable condition (save for any defects for which the Supplier has accepted responsibility under clause 16), in which case the Supplier shall credit you the invoiced value of the returned goods.

6. Title

(a) Title to goods sold by the Supplier to you will not pass from the Supplier to you until the later of:

(i) unconditional payment in full to the Supplier for those goods;

(ii) unconditional payment in full of all other amounts owing or unpaid by you to the Supplier on any account, including in respect of goods previously or subsequently supplied to you.

(b) Payment in full will not be regarded as having been received by the Supplier unless and until payment is made in cleared funds.

(i) you will hold the goods as a fiduciary and as bailee for the Supplier and will be responsible for any loss, damage or conversion of the goods;

(ii) you must store the goods in such a manner as to show clearly that they remain the Supplier ‘s property; (iii) the Supplier may enter any premises owned or occupied by you or your agents to inspect the goods or inspect your books or records regarding the goods at any time; and

(iv) subject to clause 8(a)(x), you may only use the goods in the ordinary course of your business, or sell the goods in the ordinary course of your business, provided that where you sell goods, you will do so as principal and you will have no power to commit the Supplier to any contract or otherwise or to any liability, but as between you and the Supplier, you will sell as fiduciary agent.

(d) You must ensure that the goods are not and will not be subject to any security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without the Supplier’s prior written consent. Without limiting the Supplier’s rights, if you become aware of a third parties interest in or relating to a security interest, including a lien, in respect of the goods, you must notify the Supplier immediately in writing and provide the Supplier with all relevant details relating to the security interest, including the third party’s full name and contact details, the nature of the security interest and the goods subject to the security interest.

(e) Despite this clause 6, the Supplier is entitled to maintain an action against you for payment of the purchase price of the goods.

7. Personal Property Securities Act 2009

(a) You agree that the provisions of clause 6(a) create a security interest (including, where applicable, a purchase money security interest, as defined in the PPSA) in goods (and their Proceeds, as defined in s 31 of the PPSA) supplied by the Supplier to you from time to time.

(b) You agree to do all things necessary and execute all documents required by the Supplier to register each security interest in the goods, and ensure that the Supplier acquires a perfected security interest in the goods, under the PPSA.

(c) Until title to goods passes to you under clause 6(a), you waive your rights under sections 95, 118, 120, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the PPSA, to the extent that is permitted by law. The Supplier may also contract out of any additional provision of the PPSA as determined by the Supplier from time to time, provided that is also permitted under the PPSA.

(d) Where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.

(e) You agree that repossession and retention of goods pursuant to the PPSA will only satisfy so much of the amounts owing by you to the Supplier as is equivalent to the Supplier ‘s estimation of the net realisable value of the goods, or their cost price (whichever is the lower) as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest you have in the goods.

(f) Until title to goods passes to you under clause 6(a), you must not give to the Supplier a written demand, or allow any other person to give to the Supplier a written demand, requiring the Supplier to register a financing change statement under the PPSA in respect of you or the goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of or covering the goods.

(g) You will be responsible for payment of any fees (and any other costs) that the Supplier incurs in relation to investigating, perfecting or registering the Supplier’s security interest in the goods, and those fees and costs may be added as a charge on invoices issued by the Supplier to you.

(h) You may not assign or factor your right and interest in any debt owed by a customer of yours to you on account of the proceeds of sale of any of the Supplier’s goods by you on credit or deferred payment terms without the Supplier’s prior written consent.

(i) Subject to section 275(7) of the PPSA and any provision of any other agreement between the Supplier and you permitting the Supplier to disclose information, the Supplier and you agree that neither of them will disclose, or authorise the disclosure of, information of the kind described in section 275(1) of the PPSA in relation to these terms and conditions, any contract or any transaction contemplated by or effected under these terms and conditions or any contract.

(j) You must notify the Supplier in writing of any change in your ownership or your business, or in your directors or address. Notwithstanding any change in your ownership / trading structure or any notice by you to the Supplier of such change, you will remain personally liable for the payment for any goods supplied to, or ordered by, you from the Supplier until you have received written confirmation from the Supplier that your account has been closed and full payment has been received by the Supplier.

8. Default

(a) If:
(i) you breach any clause of these terms and conditions or any clause of any other agreement to which you and the Supplier are parties;
(ii) any cheque tendered by you or on your behalf to the Supplier is dishonoured for payment;
(iii) you fail to comply with any lawful demander payment issued by the Supplier;
(iv) any amount payable by you to the Supplier becomes overdue for payment or, in the Supplier ‘s opinion, you will be unable to meet your payment obligations to the Supplier as they fall due; (v) any of the following occurs to you, if you are a company:
(A) a receiver, manager, administrator or controller becomes entitled to take possession of any of your assets, any proceedings are instituted for your winding up, or you enter into a deed of company arrangement; or
(B) you become an externally – administered body corporate or become insolvent;
(vi) you(if you are an individual) commit an act of bankruptcy or are or become an insolvent under administration; or
(vii) a change occurs in your ownership or in the ownership of your business, or in your directors; then, without prejudice to the Supplier ‘s other remedies under these terms and conditions or at law:
(viii) all amounts owing to the Supplier by you will, whether or not due for payment, become immediately payable by you;
(ix) the Supplier will be entitled to cancel all or any part of any of your orders which remain unfulfilled;
(x) your right to possess, use up, sell or otherwise deal with goods in respect of which title has not passed to you under clause 6(a) will cease; and
(xi) the Supplier will be entitled to enter any premises where the goods in respect of which title has not passed to you under clause 6(a) are kept, and remove, repossess and re – sell all or any such goods.The Supplier is not liable to you if it takes any such action.

(b) You indemnify the Supplier in respect of any claims or actions against, and costs, expenses and other liabilities incurred by, the Supplier in relation to:
(i) the removal, repossession and sale of goods pursuant to these terms and conditions, including without limitation, any claims brought by third parties;
(ii) any of the matters set out in clauses 8(a)(i) to(vii)(both inclusive).

(c) You must pay interest to the Supplier on any of its invoices to you which are 14 days overdue for payment. Such interest will accrue daily at a daily Default Interest Rate from the date when payment becomes due until the date of payment. Interest will be calculated daily, and will accrue at such a rate after, as well as before, any judgment.

(d) Without prejudice to any other remedies the Supplier may have, if at any time you are in breach of any obligation(including relating to payment), the Supplier may suspend or terminate the supply of goods and services to you and any of the Supplier ‘s other obligations under these terms and conditions. The Supplier will not be liable to you for any loss or damage you suffer because the Supplier exercises its rights under this clause.

(e) If the arrangements provided under this clause 8 constitute a credit contract as defined in the National Credit Code, the time for payment of any overdue account is limited to a total period of not more than 62 days from the date of the Supplier’s invoice. Nothing in this clause 8(e) imposes an obligation on the Supplier to extend its payment terms to you for any period at all.

9. Payments

(a) You shall pay to or at the direction of the Supplier the total amount owed for goods and services supplied to you by the Supplier, as set out on the Supplier’s invoice relating to the relevant goods or services, within the time or by the due date stipulated in that invoice. The Supplier extends no further credit to you beyond that time or that due date.

(b) You will not be entitled to make any claim on the Supplier if any amounts are outstanding from you to the Supplier. You are not entitled to set off any amounts against your outstanding debts to the Supplier. The Supplier may at any time set off amounts owed by the Supplier or any of its related bodies corporate to you against any amounts owed by you to the Supplier or any of its related bodies corporate. You may not deduct any sum from the amount due on any of the Supplier’s invoices or statements for any reason whatsoever, including any equitable right and any statutory right which may be excluded by agreement.

10. Supplier’s expenses

You will pay to the Supplier any and all of the Supplier’s expenses including any legal costs (on an indemnity basis), stamp duties and other expenses payable under these terms and conditions together with any collection costs incurred in connection with the enforcement of, or preservation of any rights under, these terms and conditions. Such costs, duties and other expenses may be recovered by the Supplier from you as a liquidated debt. Any payments received by the Supplier from you must be applied first to any legal costs, duties and other expenses, then to interest and the remainder to the balance of monies owed by you.

11. Exclusion of Warranties and limitations of Suppliers liability

(a) The Supplier excludes all warranties and guarantees in connection with all goods and services(or advice regarding goods or services) supplied to you other than:

(i) those which may not be excluded under the Competition and Consumer Act 2010(Cth) or other relevant legislation;

(ii) any express written warranties or guarantees issued or approved in writing by the Supplier covering its goods or services.

For the avoidance of doubt, this exclusion includes an exclusion of all conditions and warranties implied by custom, the general law or statute and for damages suffered by you arising in any way out of the supply, delay in supplying or failure to supply goods or services.

(b) The Supplier’s liability under any guarantee, condition or warranty implied or stipulated by the Competition and Consumer Act 2010 (Cth) or similar legislative provision which may not be excluded but may be limited in any of the following ways, is limited at the Supplier’s option to:

(i) in the case of goods supplied by the Supplier:

(A) the replacement of goods or the supply of equivalent goods;
(B) the repair of goods;
(C) the refund of the price paid by you for goods;

(ii) in the case of services supplied by the Supplier:
(A) the supply by the Supplier of the services again;
(B) the refund of the price paid by you
for the services.
(c) The Supplier is not liable for any indirect or consequential loss however described(including, without limitation, loss of profits), except for any such liability which may not be excluded by force of the Competition and Consumer Act 2010 or similar legislative provision.

12. Force majeure

The Supplier will not be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the Supplier’s reasonable control.

13. Delivery

(a) Delivery of goods supplied by the Supplier to you takes place at the time:
(i) the goods pass into your, your carrier’s or your agent’s exclusive physical control;

(ii) when you collect goods or arrange for their collection from the Supplier;
(iii) when ownership of the goods has passed to you, whichever is earliest time.
(b) Unless the Supplier agrees otherwise, you are responsible for all delivery costs

(c) Any date for delivery of goods indicated by the Supplier is an estimated date for delivery only. The Supplier is not liable for any loss, including consequential loss or damage, however it arises, if goods are not delivered or supplied by that date. In no case will the Supplier be liable for any amount payable by you to a third party as a result of a failure or delay in delivery by the Supplier due to any cause whatsoever.
(d) If agreed by the Supplier, it will deliver goods you purchase from the Supplier to an address nominated by you. If the Supplier delivers goods, then:
(i) you must pay all freight, insurance and other charges associated with the delivery, and the Supplier may choose the mode of transport, carrier and insurer (if applicable);
(ii) you or your representative must be present at the agreed place and time for delivery. If you or your representatives are not present, the Supplier may unload the goods at that place, in which case the goods will be deemed to have been delivered and the Supplier will not be responsible for any claims, costs or losses suffered by you.

14. Containers

(a) If it is necessary for the Supplier to order container(s) for the delivery of goods ordered by you, you will be responsible complying with the relevant time limitations specified by each relevant shipping company for the hiring of the container(s). You acknowledge that normally, you will have(without being charged by the shipping company) 3 days from delivery of the goods to the relevant wharf to accept the goods, and then 7 days from the time of delivery to unload the goods from the container and de-hire the container for return to the shipping company. These time periods are indicative only and subject to change by shipping companies without notice to you.

(b) Any costs incurred for lateness in acceptance, unloading and de hiring of the container are your sole responsibility and you acknowledge and unconditionally agree that you will indemnify the Supplier against, and be solely responsible for, those extra charges, if incurred by the Supplier and that you shall pay or reimburse those charges to the Supplier upon demand and without deduction or set off. As an indicator only, shipping companies may charge between $AUD $150 – $250 per day. These rates are subject to change by shipping companies without notice to you.

(c) The Supplier is not responsible for advising you of actual shipping companies’ fees and deadlines for the acceptance and unloading of goods and for the de-hiring and return of containers, and failure by the Supplier to so advise you will not entitle you to avoid or withhold payment of fees charged by shipping companies to the Supplier in respect of goods ordered by you.

15. Risk

(a) At all times from the time of delivery (as determined under clause 13(a)), goods supplied by the Supplier to you are at your risk of loss or damage and you are responsible for their safe custody.It is up to you to arrange your own insurance.
(b) If any such goods are damaged or destroyed prior to property in them passing to you, the Supplier is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of all the balance of the price for the goods) to receive all insurance proceeds payable for the goods. This applies whether or not the price has become payable under a contract. The production of these terms and conditions by the Supplier is sufficient evidence of its right to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

16. Claims

(a) When you take delivery of goods supplied by the Supplier, you must inspect them immediately and carry out any test that a prudent purchaser would carry out.
(b) Goods supplied by the Supplier will be considered to have been supplied and delivered in good condition unless you give the Supplier written notice of any damage or defect within 7 days after delivery. If you give the Supplier this notice, you must:
(i) preserve the goods in the state in which they were received by you for 14 days after notice is received by the Supplier;
(ii) during that period allow the Supplier and its agents access to any premises where the goods are kept for the purposes of inspecting the goods;
(iii) not return the goods unless you comply with clause 5 of these terms and conditions, and with any directions the Supplier gives you concerning the goods.
(c) The Supplier is under no obligation to accept goods returned by you or that you claim are defective, and will do so at its discretion and then subject to you having complied with clauses 5 and 16(b).
(d) You agree that you will make no claim against the Supplier for any delay in delivery of goods or services.

17. Intellectual Property Rights

(a) Neither these terms and conditions nor any contract gives you any Intellectual Property Rights in or in relation to any goods or services supplied by the Supplier to you.
(b) In this clause 17, Intellectual Property Rights; includes, but is not limited to, the full benefit of any rights in any copyright, trade mark, registered design, patent, trade and business names, inventions, knowhow, improvements, discoveries, confidential processes and information and includes artistic works, images, designs, motifs and photographs and any adaptation or concept relating to it.

18. Trusts

(a) This clause 18 applies if you are the trustee of a trust, whether or not the Supplier has notice of the trust.
(b) Where you comprise 2 or more persons and any of those persons is a trustee, this clause 18 applies to such trustee.
(c) You agree that even though you enter into these terms and conditions or a contract as trustee of a trust, you will also be liable personally for the performance and observance of every obligation to be observed and performed by you, whether express or implied, in these terms and conditions or any contract.
(d) You warrant your complete, valid and unfettered power to enter into these terms and conditions and each contract pursuant to the terms of the trust, and warrant that your entry into these terms and conditions and each contract is in the due administration of the trust.
(e) You warrant that you have a right of indemnity against the property of the trust and that right has not been, and in the future will not be, excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).
(f) You must not, without the Supplier’s prior written consent;
(i) resign or be removed as trustee of the trust or appoint or allow the appointment of a new or additional trustee of the trust;
(ii) amend or revoke any of the terms of the trust;
(iii) vest or distribute the property of the trust or advance or distribute any capital of the trust to a beneficiary or resettle any of the property of the trust;
(iv) permit a beneficiary to have the use, occupation, employment or possession of the property of the trust;
(v) do or permit or omit to do an act or thing in breach of the terms of the trust, or which would permit the trustee to be removed as trustee of the trust;
(vi) exercise or permit or allow to be exercised a power to change the vesting date of the trust or provide for an early determination of the trust;
(vii) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the trust;
(viii) pay any of the income of the trust to any beneficiary of the trust if such payment will prejudice or affect your ability to pay all amounts due to the Supplier.

19. Whole agreement

These terms and conditions and each contract form the entire agreement on which the Supplier supplies goods and services to you or otherwise trades with you, and all or any previous agreements or understandings the Supplier may have had with you are superseded by these terms and conditions and each contract.

20. Amendments

The Supplier may amend (including, without limitation, by replacing) these terms and conditions at any time on not less than one month’s written notice to you. All transactions (including contracts) arising after the effective date of the amendments specified in such notice will be subject to the amended terms and conditions. If you continue to trade with the Supplier after the date such amendments become effective, you will be deemed to have agreed to the amended terms and conditions.

21. Assignment

(a) You may not assign any rights or benefits under these terms and conditions or any contract unless you have obtained the Supplier’s prior written consent. Any change in any ownership interest in you will be treated as an assignment. Any assignment by you without the Supplier’s consent will release the Supplier(at its discretion) from its obligations under these terms and conditions and each contract, and clause 8 will apply.
(b) The Supplier may assign, sub-contract or license any of its rights, benefits or obligations under these terms and conditions or any contract without your consent.

22. Governing law and jurisdiction

These terms and conditions and each contract are governed by the laws of Victoria. You and the Supplier submit to the exclusive jurisdiction of the courts exercising jurisdiction in Victoria.

23. Notices

(a) Any notice required to be given by you to the Supplier must be delivered personally or sent by post to its head office addressed to its accounts department and will only be taken as delivered when received by the Supplier.
(b) Any notice to be given to you by the Supplier may be delivered personally or sent by post to your last known address and will be taken as delivered to you 2 business days following posting. The Supplier’s invoices and statements are deemed to be received by you 2 business days after posting by ordinary prepaid post.
(c) Service by the Supplier of any document will be treated as having been effected when sent:
(i) by facsimile transmission, to the fax number;
(ii) by email, to the email address, shown in your application to the Supplier for credit, and for the purpose of section 13(1) of the Electronic Transactions (Victoria) Act 2000 and any similar legislation in any other jurisdiction, you agree that in the case of facsimile or email transmission, production by the Supplier of a copy of a facsimile transmission or email message bearing the time and date of dispatch will be conclusive evidence that the facsimile transmission or email message was sent on that date and time shown.

24. Supplier’s related entities

You agree that if any related entity of the Supplier nominated by the Supplier from time to time agrees to supply goods or services to you, these terms and conditions shall apply to, and bind you in respect of, all sales and supplies by that related entity to you, and all purchases by you from that related entity, of goods and services, and all other transactions between that related entity and you, as if that related entity were named as the Supplier in these terms and conditions.These terms and conditions and each contract override your terms and conditions(including, without limitation, any terms and conditions printed on an order, or that you send to the Supplier at any time). These terms and conditions and each contract apply in place of, and to the exclusion of, your terms and conditions.

25. Exclusion of your terms and conditions

These terms and conditions and each contract override your terms and conditions (including, without limitation, any terms and conditions printed on an order, or that you send to the Supplier at any time). These terms and conditions and each contract apply in place of, and to the exclusion of, your terms and conditions.