Terms and Conditions
To the extent that we have not agreed any other terms with you then:
If the Buyer agrees to buy the Goods and/or Services pursuant to a Quotation and the Supplier accepts the agreement to buy, these terms and conditions from part of the agreement to supply the Goods and/or Services.
2.1 General obligation
The Supplier must supply the Goods and/or Services to the Buyer in accordance with the terms and conditions of this Agreement.
3 DELIVERY, RISK, TITLE AND PPSR
(a) The Supplier must deliver the Goods and/or Services to the Buyer at the location described in the Quotation.
(b) The Supplier will notify the Buyer of any expected delay in the delivery of the Goods and/or Services but will not be liable to the Buyer for any such delay.
(c) Delivery of the Goods and/or is at the cost of and charged to the Buyer.
(a) All risk in the Goods (including the risk of loss, theft or damage) passes to the Buyer upon delivery. Goods delivery takes place when the Goods are offloaded at the address of the Buyer described in the Quotation.
(b) The Buyer must insure the Goods and keep them insured for their full replacement value against all risks relating to Goods of that kind including any loss, damage or liability associated with the delivery, from the time the risk in the Goods passes to the Buyer until the time that title to the Goods passes to the Buyer. The Buyer must pay any proceeds of the Goods’ insurance to the Supplier up to any amount it owes the Supplier in respect of the Goods, and until such payment is made must hold these proceeds on trust for the Supplier in a separate account.
(a) Title and ownership in the Goods remains exclusively with the Supplier and does not pass to the Buyer (even if the Buyer becomes Insolvent) until the Buyer pays the Supplier in full in cleared funds of the Goods and Services Price and other Charges in accordance with this Agreement and any relevant Invoice.
(b) Until title and ownership in the Goods pass to the Buyer in accordance with this clause:
(i) The Buyer must mark the Goods and store the Goods separately so that they are readily and easily distinguishable from property of the Buyer or others and, if the Supplier requests, provide to the Supplier a report about the Goods location and status;
(ii) The Buyer must hold the Goods as bailee for the Supplier (and such bailment will terminate if the Buyer becomes Insolvent).
(iii) The Buyer must indemnify the Supplier against any Loss incurred by it in connection with the possession, use or disposal of the Goods by the Buyer and any actual or attempted repossession of the Goods by the Supplier.
(a) In the event that the Supplier delivers on credit, the Buyer acknowledges that the Supplier has a security interest in the Goods for the purposes of the Personal Property Securities Act (Cth) (PPS Act) and to the extent applicable the PPS Act applies. To give effect to the above, the Buyer consents to the Supplier effecting a registration on the Personal Properties Securities Register (PPSR) (in any manner the Supplier considers appropriate) in relation to any security interest arising under or in connection with this Agreement and the Buyer agrees to provide all assistance reasonably required to facilitate this. The Buyer also undertakes to do all such things, including executing any new document or providing any information that is required by the Supplier so that it can acquire and maintain a perfected security interest under the PPSA in respect of the Goods and its proceeds, so that the Supplier may register a financing statement or financing change statement and to ensure that its security position, and rights and obligations, are not adversely affected by the PPS Act
(b) The Buyer waives the right to receive any notice under the PPS Act (including notice of a verification statement) unless the notice is required by the PPS Act and cannot be excluded.
(c) The Buyer acknowledges that if the Suppliers interest under this Agreement is a security interest for the purposes of the PPS Act:
(i) that security interest relates to the Goods and all proceeds of any kind; and
(ii) each sale is a security agreement for the purposes of the PPS Act.
(d) The Supplier may in its absolute discretion perfect any security interest held by them against any third party on whose site the Goods are located in any manner that the Supplier consider appropriate to protect our interest in the Goods.
(e) If requested by the Supplier, the Buyer must provide the Supplier with all details as to the location of the Goods and the identity of any sub-lessee or third party that has been given possession.
(f) (Subject always to the Suppliers consent) If the Buyer sub-leases or provide the Equipment to a third party the Buyer must do everything required to ensure that the Buyers security interest has attached and is perfected by registration on the PPSR.
(g) The Buyer undertakes not to:
(i) register a financing change statement in respect of a security interest contemplated or constituted by this Agreement without the Suppliers prior written consent; and
(ii) register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without our prior written consent.
(h) If the PPS Act applies to the enforcement of a security interest arising under this Agreement:
(i) section 115(1) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Buyer will have no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(ii) section 115(7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Buyer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
(i) The Buyer agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. The Buyer waive any right the Buyer may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
(j) For the purposes of section 20(2) of the PPS Act, the collateral is the Goods. This Agreement is a security agreement for the purposes of the PPS Act.
(k) The Buyer agrees to notify the Supplier in writing of any change to the Buyers details set out in Part A, within 5 days from the date of such change.
4 WARRANTIES AND ACKNOWLEDGEMENT
4.1 Supplier Warranties
The Supplier warrants to the Buyer that:
(a) it has the necessary knowhow, skills, equipment and resources required to produce and supply the Goods and/or Services in accordance with this Agreement;
(b) it will perform its obligations under this Agreement in a competent and professional manner with all reasonable skill and care;
(c) The Supplier guarantees that goods are of acceptable quality when sold. In the event that a good is not of acceptable quality when sold you should immediately contact the Supplier by the methods described below. For all household goods (as defined by the ACL) if there is a major failure of one of the Supplier guarantees, the Buyer is entitled to a refund or to reject the item and to get an identical replacement or one of similar value if reasonably available or to keep the goods and get compensation for the drop in value caused by the problem. If there is a minor failure we can chose to repair or replace any item sold by the Supplier or to offer the Buyer a refund. Important Exclusions: the Supplier warranty does not cover: in transit damage; reasonable directions; wilful abuse or misuse. This warranty this warranty does not cover any products sold ‘as is’ or used in breach of our warranty, any damage caused by products not used according to product instructions, consequential damage or incidental damages (except as provided for in the ACL), personal injury, lost profits, lost savings or other economic damages, loss of use of the goods, rental or hire use, damage from prolonged exposure to fire or heat, damage from fraud, intentional acts, war, hostilities, terrorism or vandalism or acts of God.
4.2 Buyer Warranties
The Buyer Warrants to the Supplier that:
(a) the information provided to the Supplier complete, true, accurate and correct.
(b) It has the financial capacity to pay for the Goods and/or Services.
(c) It has disclosed to the Supplier all relevant information in respect to the supply of the Good and/or Services by the Supplier.4.3 Acknowledgment
The Buyer acknowledges and agrees that the Supplier:
(a) will rely on the information provided to it by the Buyer and will not seek to verify the accuracy or completeness of that information or that the Buyer is the owner of any marks or property;
(b) will not carry out any form of due diligence or audit on the records relating to your business and will not verify the accuracy or completeness of any such information nor conduct an appraisal of the same;
(c) does not warrant that any enquiries made by it (if any) will identify or reveal any matter, which an audit, due diligence review or examination might disclose.
5 INTELLECTUAL PROPERTY
5.1 Intellectual Property
The Buyer acknowledges that:
(a) it has no ownership of any Intellectual Property Rights on the Goods and/or Services (Product IP);
(b) any Product IP, along with the goodwill of business relating to such Intellectual Property, are the sole and exclusive property of the Supplier;
(c) this Agreement does not give the Buyer any right to use the Product IP in connection with the manufacture or remanufacture of the Goods or provision of the Services;
(d) The Buyer will not:
(i) claim any right, title or interest in or to the Product IP; or
(ii) register or apply to register any Product IP anywhere in the world; and
(e) The Buyer will take all measures reasonably required by the Supplier to protect the Product IP.
6 CHARGES & TAXES
The Buyer must pay the Charges set out in the Quotation.
6.2 Charges exclusive of all other Taxes
Unless otherwise stated in Quotation, all Charges exclude Taxes, whether increased, new or additional amounts and all freight, insurance, delivery and other expenses which may be incurred.
(a) Despite the definition of consideration in the GST law, and unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
(b) If a party makes a taxable supply under or in connection with this Agreement, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.
(c) The supplier must, as a precondition to the payment of GST under clause 6.3(b) (GST), give the other party a tax invoice.
(d) If an adjustment event arises in connection with a supply made under this Agreement, the supplier must give the other party an adjustment note in accordance with the GST law.
(e) If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of Input Tax Credits (if any) to which the other party is entitled in respect of the reimbursable expense.
6.4 Withholding tax
If a law requires the Buyer to deduct an amount in respect of Taxes from a payment under this Agreement, then:
(a) the Buyer must pay an additional amount to the Supplier so that, after the deduction is made, the Supplier would receive a net sum equal to the sum that it would have received if the deduction had not been made.
7 INVOICING AND PAYMENT
7.1 Invoice for Charges
The Supplier may invoice the Buyer for the Charges in accordance with the Quotation. The Buyer must pay the invoice within 7 days of the date of the invoice.
7.2 Default Interest
Should the Buyer delay or default in respect of any payment due hereunder, the Supplier shall have the right to charge interest at a rate equivalent to 10% per annum calculated from the day after the payment becomes due until the day of full and final payment.
7.3 Disputed invoice
(a) If the Buyer disputes the amount of the invoice submitted by the Supplier, then the Buyer is not obliged to pay the disputed portion of the invoice until the dispute is resolved, but Buyer must pay all other non-disputed amounts in accordance with this clause 7 (Invoicing and payment).
(b) The Supplier may suspend, cancel or withdraw the provision of the Goods and/or Services in whole or in part as a result of a disputed invoice.
8 LIABILITY AND INDEMNITY
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, THE SUPPLIER, INCLUDING ITS AFFILIATES, SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL LOSS FOR DAMAGES, UNDER, ARISING OUT OF OR IN CONNECTION WITH ANY SUPPLY AGREEMENT, THE SALE OR DISTRIBUTION OF ANY GOODS OR SERVICES BY THE SUPPLIER OR THE USE THEREOF, OR THE SUPPLIER’S TERMINATION OR FAILURE TO EXTEND ANY SUPPLY AGREEMENT, WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT (INCLUDING NEGLIGENCE), WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF THE SUPPLIER HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
(b) TO THE FULLEST EXTENT PERMITTED BY LAW, THE SUPPLIER’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS THE BUYER UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT OF ONE THOUSAND AUSTRALIAN DOLLARS.
(c) Any claim by the Buyer’s for damages must be brought by the Buyer within 90 days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within 6 months of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
8.2 Indemnity to the Supplier
The Buyer indemnifies the Supplier and its Affiliate as well as their representatives, officers, directors, employees and successors, against all losses, damages, liabilities, claims and expenses (including legal costs) incurred by the Supplier and its Representatives, arising out of or in connection with any breach of this Agreement including breach of the warranties as set out in clause 5 by the Buyer or its Representatives.
9.1 Supplier’s rights to terminate
(a) The Supplier may terminate this Agreement immediately:
(i) by notice in writing to the Buyer if the Buyer is Insolvent;
(ii) by written notice to the Buyer if Buyer has not paid a correctly rendered invoice in respect of a Charge within 7 Business Days after the due date for payment.
(iii) by written notice to the Buyer if the buyer breaches this agreement and fails to remedy the breach within 7 days.
(b) The Buyer may terminate this Agreement by 30 days written notice to the Supplier if the Supplier breaches the agreement and fails to remedy the Agreement within 30 days.
10 CONSEQUENCES OF TERMINATION
10.1 Preservation of rights
(a) Termination for any reason does not extinguish or otherwise effect any rights of either party against the other which accrued prior to the time of the termination, or otherwise relate to or arise from any breach or non-observance of obligations under this Agreement which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination and is without prejudice to any claim to damages that the party may have.
(b) Without limiting the above, clauses 3 (Title and Risk), 4 (Warranties), 5 (IP), 6 (Charges and Taxes), 7 (Invoicing and payment), 8 (Liability and indemnity) and 10 (Consequences of termination), survive termination of this Agreement.
(c) In the event of termination by the Buyer, the Suppliers liability to the Buyer is limited to the amount paid by the Buyer to the Supplier.
Unless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be in writing, signed by the sender (if an individual) or a person appointed as an authorised officer of the sender and marked for the attention of the person identified in the Details or, if the recipient has notified otherwise, then marked for attention in the way last notified.
12 GOVERNING LAW
13.1 Remedies cumulative
The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
13.2 Variation and waiver
A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
The parties agree to pay their own legal and other costs and expenses in connection with the preparation, execution and completion of this Agreement and other related documentation except for stamp duty.
13.5 Set Off
The Buyer must not set off against any amount due for payment by the Buyer to the Supplier any amount owed by the Supplier to the Buyer.
If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
13.7 No relationship
Nothing in this agreement will be taken to constitute the Supplier as an employee, agent, partner or joint venturer of the Buyer nor is the Supplier authorised to represent itself as acting, or to incur any obligation, on behalf of the Buyer.
14.1 DefinitionsAffiliate means, in relation to a party, any company which is for the time being a holding company of that party or a subsidiary of that party or of any such holding or subsidiary company.
Associate has the meaning given to it in the Corporations Act.
Business Day means a day other than a Saturday, Sunday or public holiday in:
(a) New South Wales, Australia; or
(b) where an obligation under this agreement is required to be performed in a particular place, that place.
Buyer Intellectual Property means all Intellectual Property Rights owned by the Buyer.
Charges means the Goods and Services Price and any other applicable fees set out in the Quotation.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Controller has the meaning given to it in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Goods means the Goods specified in Quotation.
Goods and Services Price means the price for Goods as calculated in accordance with the Quotation.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
GST has the meaning it has in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST law has the meaning given to that term in the GST Act or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Input Tax Credit has the meaning given to it in the GST Act.
A person is Insolvent if:
(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or
(b) it has had a Controller appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property; or
(c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);
(d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;
(f) it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);
(g) it is otherwise unable to pay its debts when they fall due; or
(h) something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction./p>
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Intellectual Property has a corresponding meaning, but excludes Buyer Intellectual Property.
Quotation means an offer to provide Goods and/or Services capable of acceptance by the Buyer.
Receiver includes a receiver or receiver and manager.
Related Body Corporate has the meaning given to it in the Corporations Act.
Representative of a party includes an employee, agent, officer, director, auditor, advisor, partner, consultant, contractor or sub-contractor of that party.
Services means the Services specified in the Quotation.
Specifications means the specification for the Goods and Services set out in or annexed to the Quotation.
Taxes means taxes, levies, imposts, charges and duties (including stamp and transaction duties, but excluding GST) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the net income of the Buyer.
Tax Invoice has the meaning given to it in the GST Act.
14.2 References to certain general terms
Unless the contrary intention appears, a reference in this Agreement to:
(a) (variation or replacement) a document (including this Agreement) includes any variation or replacement of it;
(b) (clauses, annexures and schedules) a clause, Schedule, Annexure, Attachment or Exhibit is a reference to a clause in, or a Schedule, Annexure, Attachment or Exhibit to, this Agreement;
(c) (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d) (law) law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(e) (singular includes plural) the singular includes the plural and vice versa;
(f) (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
(g) (executors, administrators, successors) a particular person includes a reference to the person’s executors. administrators, successors and substitutes (including, persons taking by novation) and assigns;
(h) (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
(i) (dollars) an amount of money is a reference to the lawful currency of Australia;
(j) (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day;
(k) (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later; and
(l) (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind;
Headings are included for convenience only and are not to affect the interpretation of this Agreement.