In consideration for payment of the Price of the Goods, the Seller sells and the Buyer buys the Goods on the terms of this Agreement. The defined terms in this Agreement are specified in the Agreement Details.
2. Placement of orders
The Buyer orders the Goods from the Seller in writing.
Each order must specify:
the date of the placement of the order; and
the quantity and description of the Goods ordered; and
a preferred delivery date for the Goods (Delivery Date).
The Goods will be delivered to the Delivery Address.
An order may only be varied as agreed in writing between the Buyer and the Seller. The Seller reserves its right to increase the price in relation to a varied order.
3. Delivery of orders
The Seller will use its best endeavours to deliver each order to the Delivery Address between the hours of 9 am to 5 pm on any day Monday to Friday (other than public holidays) at a time agreed by the Seller and Buyer.
4. Packing of orders
The Seller will ensure each order is safely and securely packed for transportation to the Buyer having regard to:
the fragility of the Goods;
the distance the Goods are likely to travel; and
the method of transportation used to transport the Goods.
Unless stated otherwise, the Price is exclusive of GST.
The Buyer must pay the Price, plus the requisite GST, in relation to each order to the Seller within 10 days of the receipt of the relevant order (Payment Due Date).
The Buyer must pay the Price by electronic funds transfer to the Seller’s nominated bank account, notified to the Buyer in writing.
The Buyer must pay interest on any outstanding amount not paid by the Payment Due Date. Interest will be calculated on the basis of the Reserve Bank of Australia interest rate as published from time to time plus 10%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.
The Seller warrants the quality of the Goods for 12 months after delivery.
The Seller’s warranty is void if the Buyer misuses the Goods or does not follow the instructions provided by the Seller for the use of the Goods.
If the Buyer raises any query that the Goods are defective it must notify the Seller in writing immediately prior to delivery.
If no notice of Defect is given the Goods will be deemed to have been accepted by the Buyer.
If the Seller does not accept that Goods are defective, then the parties will use all reasonable commercial efforts to resolve the dispute consensually but if they fail to resolve the dispute within 30 days of notice having been given to the Seller of the defect the dispute is to be resolved in accordance with clause 15.
If the Goods are defective the Seller may (at its selection) replace the Goods at no additional cost to the Buyer. This is the only remedy available to the Buyer in relation to the supply of defective Goods.
7. Passing of title
Title to the Goods constituting an order passes to the Buyer free of encumbrances and all other adverse interests upon receipt by the Seller of payment in full of the Price.
Until title to the Goods constituting an order passes to the Buyer, the Seller holds a security interest in the Goods and all proceeds from the sale of the Goods as contemplated under the Personal Property Security Act 2009 (Cth).
8. Rights in relation to Goods
The Seller reserves the rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid. These are rights:
to ownership of the Goods;
to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), to keep or resell any Goods repossessed pursuant to paragraph 8(a)(ii) above.
If the Buyer resells the Goods or products manufactured using the Goods, the Buyer must hold part of the proceeds of any such sale, as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold, in a separate identifiable account as the beneficial property of the Seller. The Buyer must pay this amount to the Seller upon request. Despite these provisions, the Seller is entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods must pass to the Buyer upon delivery.
Prior to title in the Goods passing to the Buyer under the terms of this Agreement, the Buyer agrees that:
the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
the Buyer cannot claim any lien over the Goods;
the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller; and
where the Buyer is in actual or constructive possession of the Goods:
the Buyer will not deliver them or any document of title to the Goods to any person except as directed by the Seller; and
it is in possession of the Goods as a bailee of those Goods and owes the Seller the duties and liabilities of a bailee.
In connection with the Goods, the Seller states to the Buyer that:
the Seller has the right to supply the Goods to the Buyer;
the activities of the Buyer in supplying the Goods do not infringe the rights of the owner of the Goods (where the Seller is not the owner of the Goods); and
if the Goods are not owned by the Seller, that the seller is authorised to supply the goods to the Buyer.
The Seller and the Buyer agree that:
the property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods;
the Buyer is a bailee of the Goods until property in them passes to the Buyer and this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and
pending payment in full for the Goods, the Buyer:
must not supply any of the Goods to any person outside of its ordinary or usual course of business;
must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the buyer carries on business; and
must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller, the Buyer agrees that:
it holds the proceeds of re-supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received;
it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received, or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
any accessory or item which accedes to any of the Goods by an act of the Buyer, or of any person at the direction or request of the Buyer, becomes and remains the property of the Seller until the Seller is paid in accordance with paragraph 8(e)(i); and
if the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller to the Buyer, subject to, and in accordance with, the Personal Property Securities Act 2009, the Seller may recover possession of the goods at any site owned, possessed or controlled by the buyer and the buyer agrees that the seller has an irrevocable licence to do so.
9. Passing of risk
Risk in each order passes to the Buyer upon delivery of that order to the Buyer.
The Seller warrants to the Buyer that:
the execution, delivery and performance by the Seller of its obligations under this Agreement and the consummation of the transactions contemplated in it are within the Seller’s corporate powers and have been authorised by all necessary corporate action on its part; and
this Agreement is a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms.
The Buyer warrants to the Seller that:
the execution, delivery and performance by the Buyer of its obligations under this Agreement and the consummation of the transactions contemplated in it are within the Buyer’s corporate powers and have been authorised by all necessary corporate action on its part; and
this Agreement is a legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms.
11. Force Majeure
It is not a breach of this Agreement if the Seller is unable to fulfil its obligations under this Agreement because of a Force Majeure Event affecting it and performance of those obligations will be suspended until the Force Majeure Event has ceased to prevent performance of those obligations.
The Seller, if affected by a Force Majeure Event, will:
give notice to the Buyer immediately in writing of the Force Majeure Event, and set out in the notice:
the details of the Force Majeure Event;
identify the nature and extent of the obligations affected by the Force Majeure Event; and
the anticipated duration of the Force Majeure Event; and
take all reasonable steps to avoid, remove or limit the effects of the Force Majeure Event on its performance of the suspended obligations as quickly as possible; and
promptly recommence performance of the suspended obligations as soon as reasonably possible.
A Force Majeure Event will not relieve the Seller affected from the subsequent compliance with its obligations under this Agreement, once the Force Majeure Event has ceased to prevent performance of those obligations unless in the meantime this Agreement has been validly terminated.
If a Force Majeure Event continues for a period of more than 90 consecutive days, either party may thereafter terminate this Agreement, with immediate effect, by giving written notice to the other party.
For the purposes of this clause 11, Force Majeure Event means includes events such as fire, explosion, action of the elements, war (including civil war), riots, revolution, legislation and acts of the authorities, strikes, shortage of raw and auxiliary materials, energy or means of transport, governmental regulations or any other contingency beyond the reasonable control of the parties.
Either party may terminate this Agreement if:
the other party is in material breach of any of its obligations under this Agreement; and
the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this Agreement.
The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this Agreement will continue to apply.
13. Limitation of Liability
The Seller will not be liable to the Buyer in respect of any losses suffered or incurred by the Buyer arising out of or in connection with the Goods.
The Seller will not, in no event, be liable to the Buyer or a third party for any indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenue, profits and goodwill.
These limitations are independent from all other provisions of this Agreement and will apply notwithstanding the failure of any remedy provided herein.
To the extent permitted by law, the Seller’s sole liability for breach of contract, breach of statutory duty, negligence or other tort, or indemnity given under this Agreement is limited, at its option, to:
the delivery of the Goods again; or
the payment of the cost of having the Goods delivered again.
14. Personal Property Securities Act 2009 (Cth) (PPSA)
This agreement is a security agreement.
The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration.
Until title in the Goods has passed to the Buyer as contemplated by clause 6, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Buyer or any third party. The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
The Buyer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Goods or of this agreement:
any requirement for the Seller to give the Buyer a notice of removal of accession;
any requirement for the Seller to give the Buyer a notice of the Seller’s proposed disposal of the Goods;
any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;
any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and
any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.
Expressions defined in the PPSA have the same meaning when used in this agreement.
15. Resolution of Disputes
If a party considers that a Dispute has arisen, it may give a notice to the other party. The notice must set out reasonable particulars of the Dispute.
Promptly after the receipt of a notice of a Dispute, the representative of each party must meet to discuss the Dispute and negotiate in good faith to resolve the Dispute without resorting to any legal proceedings.
If the parties do not resolve the Dispute in accordance within 10 days of receipt of the notice of the Dispute, either party may request that the Dispute be escalated to the chief executive officers of each party who must negotiate in good faith to resolve the Dispute without resorting to any legal proceedings.
If the chief executive officers of each party have not resolved the Dispute within 30 days from the date of escalation of the Dispute under clause 15(c), either party may commence legal proceedings.
Compliance with this clause 16 is a condition precedent to a party’s entitlement to commence legal proceedings in relation to a Dispute.
For the purposes of this clause 15, Dispute means any dispute which arises out of or relates to each party’s obligations or this Agreement, including without limitation the entry into, breach, termination or validity of this Agreement.
This Agreement is not to be amended except in writing signed by each of the parties.
17. Proper law
This Agreement is governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.