General Terms and Conditions

II. Definitions

In these Conditions:

“ACL” means Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

“Confidential Information” means any proprietary or confidential documents, knowledge and information, prices, specifications, business and trade secrets, formulas and know-how, prices, production method, samples, models, drawings, data standard sheets, manuscripts and other technical and business documentation supplied or made known to the Customer, or other information in any form concerning the Company and its related entities worldwide;

"Consequential Loss" means any:

1. loss of profits;
2. loss of revenue;
3. loss of production;
4. loss or denial of opportunity;
5. loss of or damage to goodwill;
6. loss of business reputation, future reputation or publicity;
7. loss of use;
8. loss of interest;
9. losses arising from claims by third parties;
10. loss of or damage to credit rating;
11. loss of anticipated savings; and
12. loss of contract,

whether direct, indirect or consequential;

“Force Majeure Event” means any cause whatsoever that is beyond the Company’s control including but not limited to delays caused by suppliers, epidemic, pandemic, disease or public health alert, Act of God; war; civil disturbance; requisitioning governmental restrictions, prohibitions or enactments of any kind; import or export regulations; strikes; lock-outs or other industrial disputes (whether involving its own employees or those of any other person); difficulties in obtaining workmen or materials; breakdown of machinery; fires; or accident;

“GST” means the goods and services tax or similar value added tax levied or imposed in Australia under the GST Act and includes any replacement or subsequent similar tax;

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Loss" means any losses, liabilities, damages, costs, charges or expenses (including lawyer's fees and expenses on a full indemnity basis) whether direct or indirect (including Consequential Loss), fines and penalties;

“Taxable Supply” and “Tax Invoice” have the same meaning as in the GST Act;

“Intellectual Property” means all intellectual property rights of the Company and its related bodies corporate (including, without limitation, all copyright, designs, trade marks and patents) of any nature in any samples, cost estimates, sketches, inventions, designs, works, discoveries, trade secrets, know-how, computer software, Confidential Information (including in electronic form) and subject matter other than works, any application or right to apply for registration of such rights,

"Place of Delivery" means the address where the Products are placed by the Company at the Customer's disposal ready for unloading,

"PPSA" means the Personal Property Securities Act 2009 (Cth),

"Security Interest" shall have the meaning as defined under the PPSA.

IV. Description and Use of Products

1. Any information published by the Company which explains or describes the Products, including samples, photographs, designs, technical specifications, data relative to dimensions and weights, is indicative only and the Company is not responsible for any inaccuracies contained therein.
2. The Company reserves its right to change the Products at any time without notice. Where the Company changes or discontinues Products which are subject to a Contract, the Company will inform the Customer and provide the Customer with revised or updated Products which have the same or equal functionality and performance as stated in the Order Confirmation.
3. The Customer must use the Products at all times:
1. in accordance with any instructions or user manuals provided by the Company;
2. in an operating environment that meets any requirements specified by the Company, and is otherwise appropriate for the Product; and
3. in a manner that complies with all applicable laws and regulations.

VI. Prices and Payment

1. The prices of the Products are the prices in Australian dollars which have been notified individually and in writing by the Company to the Customer (“Prices”).
2. Unless otherwise specified by the Company in writing, all prices are:
1. quoted DDP (INCOTERMS 2020) to the Place of Delivery. and
2. inclusive of all freight costs, import charges, including customs duties, imposts and levies relating to the import of the Products.
3. Payment is due in full prior to delivery, or such other date as agreed between the Company and the Customer (“Payment Date”).
4. If the Customer defaults in the payment of any money due to the Company pursuant to these Conditions on the Payment Date, then in addition to any other rights which may be conferred upon the Company by law or equity, the Company will be entitled to be paid interest by the Customer on such money at the rate prescribed in Rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW) from the date of such default until full payment to the Company.
5. If payment is not made in accordance with clause (VII.3.), or if at any time the credit standing of the Customer, in the opinion of the Company, is at risk or has been impaired, the Company may refuse delivery of any Products ordered until alternative arrangements as to payment or credit in terms satisfactory to the Company have been agreed.
6. If GST is imposed on a Taxable Supply made by the Company to the Customer under or in connection with these Conditions, the Price of the Taxable Supply shall be equal to the GST-exclusive consideration that the Customer must pay to the Company for the Taxable Supply under these Conditions increased by an amount (the GST Amount) equal to the amount of GST payable on that Taxable Supply and the GST Amount is, subject to the Company issuing a Tax Invoice to the Customer, payable at the same time and in the same manner as the consideration to which it relates.
7. The Customer may not withhold or set off any payment or make deductions from any amount owing to the Company without the Company’s prior written consent.

VIII. Delivery

1. Unless the Company otherwise agrees, delivery of Products shall be made when the Products are made available for unloading by the Customer at the Place of Delivery.
2. Stated delivery times are no more than an estimate by the Company and shall not be binding upon the Company. The Company will not be liable for any Loss resulting partly or wholly from late delivery.
3. The Customer must take delivery of the Products ordered by it from the Company in accordance with the Contract. If the Customer fails to take delivery at the Place of Delivery, the Company may charge the Customer additional delivery charges as well as reasonable storage charges payable monthly on demand.
4. If the quantity of Products delivered does not correspond with the quantity stated in an Order Confirmation, the Customer shall only be liable to pay for the quantity delivered in the case of short-delivery and for the price stated in the Order Confirmation in the case of over-delivery (subject in the latter case to the Customer permitting the Company to collect the surplus Products), provided that in no event shall such short or over-delivery entitle the Customer to damages or give the Customer a right to rescind the agreement of which these Conditions form part.
5. Any surplus Products delivered shall remain the property of the Company and the Customer shall take all necessary precautions for the safe custody and protection of such surplus Products until the time of their removal by the Company.
6. In no circumstances shall any Products be returned to the Company without its prior written consent.
7. Unless otherwise agreed by the Company in writing:
1. The Customer must inspect the Products on delivery. Where the Customer believes that there has been damage to or loss of the Products during transport, the Customer must note in writing any such damage or loss at the time of delivery on the delivery documents of the transport company.
2. If the Customer believes that there is a defect in the products, the Customer must not on-sell or use the Products in a manufacturing process and must notify the Company in writing within 10 days after delivery of the Products.
3. In the event of the Customer’s failure to comply with the terms of this clause at the times as specified in (a) and (b) above, the Customer shall be deemed to have accepted the Products and, subject to any right which the Customer may have under the ACL, the Customer waives all rights to claim in respect of damage, Loss or defects in the Products.

XI. Passing of Risk and Title

1. Unless otherwise agreed by the Company in writing, risk in the Products shall pass to the Customer when the Products are delivered in accordance with clause (VIII.1.).
2. Notwithstanding that risk passes to the Customer under clause (XI.1.), until full payment in cleared funds is received by the Company for all Products supplied by it to the Customer, as well as all other amounts owing to the Company by the Customer under any Contract:
1. legal title and ownership in the Products shall remain with the Company and does not pass to the Customer.
2. the Customer must store the Products separately and in such a manner and maintain any labelling and packaging of the Company, so that the Products are clearly and readily identifiable as the property of the Company.
3. the Customer must not sell the Products except in the ordinary course of the Customer's business.
4. the Customer holds and agrees to hold the proceeds of any sale, lease or other dealing with the Products for the Company in a separate bank account with a bank which does not (and will not in the future) provide finance to the Customer.
5. in addition to any rights the Company may have under Chapter 4 of the PPSA, the Company may, at any time, demand the return of the Products and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Products may be located in order to search for and remove the Products without committing a trespass, even though they may be attached or annexed to other goods or land not the property of the Company, and for this purpose the Customer irrevocably licenses the Company to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Company from and against all Loss suffered or incurred by the Company as a result of exercising its rights under this subclause.
6. the Customer acknowledges and warrants that the Company has a security interest (for the purposes of the PPSA) in the Products and any proceeds and the Customer must do anything reasonably required by the Company to ensure that such security interest is enforceable, perfected and otherwise effective and has the priority required by the Company which, unless the Company agrees in writing otherwise, is first priority.
3. Until such time as Ownership in the Products passes to the Customer, the Customer shall:
1. be in a fiduciary relationship with the Company;
2. keep, and provide the Company at any time on reasonable request, proper and complete stock records covering the receipt, identification, storage, location, sale and movement of the Products; and
3. keep the Products, at its own cost, insured against such risks as a prudent owner of the Products would insure at their full cost price, with a reputable insurance company.
4. Notwithstanding clauses (XI.2.) and (XI.3.) the Customer is entitled until notified by the Company or until the happening of any of the events set out in clause (XI.7.) to, if the Customer is a retailer, sell the Products in the normal course of its business, in which case the proceeds of resale must be held in trust for the Company in a separate account.
5. The Company is entitled at any time while any debt remains outstanding by the Customer to notify the Customer of its intention to take possession of the Products and for this purpose the Customer irrevocably authorises and licenses the Company and its servants and agents to enter upon the land and buildings of the Customer with all necessary equipment to take possession of the Products. The Company is not liable for damage or injury to any premises caused by the Company exercising its rights under this clause.
6. On receipt of notice from the Company or on the happening of any of the events set out in clause (XI.7.), the following applies:
1. the Customer’s authority to sell or otherwise deal with the Products as set out in clause (XI.4.) is withdrawn;
2. all amounts owed by the Customer to the Company become immediately due and payable;
3. the Company may withhold delivering further Products and all invoices issued by the Company to the Customer become due and payable immediately; and
4. the Customer must immediately deliver to the Company all Products which are in the Ownership of the Company.
7. The Customer shall give immediate notice to the Company of
1. the Customer becomes insolvent under administration as defined in Section 9 of the Corporations Act 2001;
2. any step is taken (including without limitation, any application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for the winding up or dissolution of the Customer or for the appointment of an administrator, receiver, receiver and manager or liquidator to the party or any of its assets;
3. the Customer resolves to enter into or enters into a scheme of arrangement or composition with, or assignment for the benefit of all or any class of its creditors or proposes a reorganisation, moratorium or other administration involving any of them;
4. the Customer becomes unable to pay its debts when they fall due, resolves to wind itself up or otherwise dissolve of itself;
5. proceedings are commenced to make the Customer bankrupt or the Customer becomes bankrupt;
6. an event analogous to any of those set out in clauses (XI.7.a) to (XI.7.e) occurs.

XII. Personal Property Securities Act 2009 (“PPSA”)

1. The Customer acknowledges and agrees that it grants the Company a Security Interest in the Products and their proceeds by virtue of the Company’s retention of title pursuant to clause (XI.).
2. The Customer undertakes to:
1. do all things necessary and provide the Company on request all information the Company requires to register a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”); and
2. not to change its name in any form or other details on the PPSR without first notifying the Company.
3. The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement in respect of the Security Interest created by these Conditions.
4. To the maximum extent permitted by law, the Customer waives any rights it may have pursuant to, and the parties contract out of, the following sections of the PPSA:
1. section 95 (notice of removal of accession);
2. section 123(2) (notice of seizure);
3. section 125 (obligation to dispose of or retain collateral);
4. section 129(2) (notice of disposal by purchase);
5. section 130 (notice of disposal);
6. section 132(3)(d) (contents of statement of account after disposal);
7. section 132(4) (statement of account if no disposal)
8. section 135 (notice of retention);
9. section 142 (redemption of collateral); and
10. section 143 (reinstatement of security agreement).
5. The Customer appoints the Company as its attorney to sign in the Customer’s name all documents which the Company considers necessary to enforce or protect its rights and powers under these Conditions and to perfect, preserve, maintain, protect or otherwise give full effect, under the PPSA and related regulations, to these Conditions and the Security Interest created by these Conditions.
6. The Customer will reimburse the Company for any fees payable by the Company in relation to the registration of the Security Interest created by these Conditions, including registration fees and maintenance fees.
7. These Conditions create a Security Interest in all Products which the Company has supplied to the Customer and all Products which the Company supplies to the Customer in the future. Initial registration of a financing statement by the Company in respect of the Customer under the PPSA covers Security Interests in Products supplied now or subsequently under these Conditions.
8. Unless otherwise defined in these Conditions, the terms and expressions used in this clause (XII.) have the meanings given to them, or by virtue of, the PPSA.

XIII. Conditions and Warranties

1. To the extent permitted by law and subject to clause (XIII.2.) all conditions or warranties (whether express or implied by statute or common law or arising from conduct or by previous course of dealing or trade custom or trade usage or otherwise) as to the quality of the Products or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) are hereby expressly excluded.
2. Nothing in these Conditions excludes, restricts or modifies the application of the ACL and any rights which the Customer may have thereunder.
3. To the fullest extent permitted by law, the Company’s liability for any breach of a consumer guarantee implied by the ACL (and which cannot be excluded) shall be limited to any one or more of the following (as determined by the Company in its absolute discretion):
1. in the case of Products, the replacement repair or payment of the cost of replacement or repair of the Products; and
2. in the case of Services, supplying the Services again or payment of the cost of having the Services supplied again.
4. Subject to any rights which the Customer may have under the ACL, the Company accepts no liability for any Loss, whether suffered by the Customer or by any third party and whether or not the Company was aware that such Loss was possible or such Loss was otherwise foreseeable, whether such Loss arises from any representation, recommendation or advice made or given in relation to the Products or the use of the Products.

XVI. Local Standards

1. It is the responsibility of the Customer at its own costs to:
1. observe any applicable laws in Australia in regard to the use and storage of the Products;
2. apply for and obtain all necessary licences, permits or other authorisations required by the local law in relation to the use of the Products and to inform the Company of any licences, permits or other authorisations which the Customer obtains under this clause.
2. The Company is not obliged to perform any of its obligations under any contract of which these Conditions form part, including delivery, unless and until the Customer has complied with clause (XVI.1.).
3. The Customer agrees that it releases, discharges and holds harmless the Company (including the Company’s employees, officers and agents) with respect to all claims, actions, suits, demands, costs, penalties, damages and expenses (including legal expenses on a solicitor client basis) which the Company has or may have as a result of the Customer not having complied with its obligations under clause (XVI.1.).