1. Definitions and interpretation
6. Holding Orders
8. Invoicing and payment
9. Additional Charges
11. Loss or damage in transit
12. Acceptance of Goods
13. Title and risk
14. Personal Property Securities Act
15. Agency and assignment
16. Default by Customer
18. Exclusions and limitation of liability
20. Other matters
1. Definitions and interpretation
In these Terms of Trade:
Additional Charge or Additional Charges means:
- fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices
- expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.
Established Account Customer means a Customer that has an established course of dealing and previously arranged payment terms with the Supplier.
Goods means any goods supplied by the Supplier including those supplied in the course of providing Services.
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST or similar impost or duty as amended or substituted from time to time.
Invoice or Invoices means an invoice issued pursuant to the Building and Construction Industry Security of Payments Act 1999.
Loss includes, but is not limited to costs, party to party legal costs, the Supplier’s legal costs, consequential loss or damage, expenses, lost profits, award of damages, personal injury and property damage.
Order or Orders means a purchase order for Goods and/or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties. For the avoidance of doubt an Order includes a Holding Order.
Holding Deposit means a deposit of fifteen percent (15%) plus GST of the value of a Holding Order.
Holding Order means an Order where the subject matter of the Order is specifically procured, held or otherwise obtained and/or retained by the Supplier at the request and for the benefit of the Customer following payment of a Holding Deposit.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulation made thereunder, as amended or substituted from time to time.
Quote or Quotes means a written description of the Goods and/or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work.
Services means the services to be provided by the Supplier to the Customer in accordance with a Quote and these Terms of Trade.
Supplier means Botanica Nurseries Pty Ltd A.C.N. 064 681 072 of 2300 Silverdale Road Silverdale NSW 2752 or such related entity as specified to be the supplier of Goods and/or Services on the Quote, and includes the Supplier’s agents and permitted assigns.
Supplier’s Catalogue means the catalogue published by the Supplier for use by trade or retail customers and which details the price for plants grown by the Supplier on a GST exclusive basis.
Work Health and Safety Laws means the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011 as amended or substituted from time to time.
In these Terms of Trade, unless the context otherwise requires:
- a reference to writing includes email and other communication established through the Supplier’s website (if any);
- the singular includes the plural and vice versa;
- a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms of Trade;
- a reference to a party to these Terms of Trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
- obligations under these Terms of Trade affecting more than one party bind them jointly and each of them severally;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- headings are for ease of reference only and do not affect the meaning or interpretation of these Terms of Trade; and
- if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
- if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
- in all other cases, must be done on the next Business Day.
- references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- As far as possible all provisions will be construed so as not to be invalid, illegal or unenforceable.
- If a provision cannot be read down, that provision will be void and severable and the remaining provisions will not be affected.
- If anything in these Terms of Trade is unenforceable, illegal or void then it is severed and the rest of these Terms of Trade remains force.
- No rule of construction will apply to disadvantage a Party on the basis that it put forward these Terms of Trade.
2.1 Engagement of the Supplier
- These Terms of Trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods and/or Services, including all Quotes, Orders, Invoices, contracts, variations and, in the case of an Establish Account Customer, established trading terms. These Terms of Trade take precedence over terms of trade contained in any document held or relied on by the Customer or any relevant third party.
- The Customer will be deemed to have accepted these Terms of Trade, irrespective of whether the Customer has acknowledged or signed these Terms of Trade, by the Customer doing any of the following acts:
- requesting or accepting a Quote;
- placing an Order or a Holding Order;
- taking or accepting delivery of any Goods and/or Services;
- using any Goods and/or Services; or
- otherwise implying acceptance of these Terms of Trade through conduct.
- The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
- The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
- These Terms of Trade are intended for, but not limited to use between the Supplier as a wholesaler and its supply to trade and retail customers. For the avoidance of doubt, these Terms of Trade apply to all transactions between the Supplier and any Customer, irrespective of that Customer’s capacity as a consumer, corporate or any other entity.
- Unless otherwise stated, all prices specified in the Supplier’s Catalogue and trade list or otherwise quoted by the Supplier are exclusive of Goods and Services Tax (GST).
- Prices specified in the Supplier’s Catalogue and trade list are exclusively applicable to Goods and/or Services provided by the Supplier. Goods and/or Services sourced from other providers for a Customer will be charged at the rate of that provider and are subject to Additional Charges by the Supplier.
- Prices quoted are those applicable at the date of issue of a Quote and are based on, without limitation, the cost of Goods and/or Services, rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production applicable on the date is made.
- If the Supplier makes any alterations to the price of the Goods and/or Services or to any of their inputs either before acceptance of or during the currency of the Quote or Order, the Customer will be liable to pay for the Goods at the altered price.
- The Supplier’s Catalogue and trade list and all prices stated therein are intended for the use and reference between the Supplier as a wholesaler and its supply to trade and retail customers. The prices stated in the Supplier’s Catalogue and trade list are not for use by, and do not apply to the general public.
- The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 30 days from the date of issue.
- Unless otherwise expressly stipulated or agreed to in writing, a Quote does not include delivery and/or installation of the Goods.
- Quotes are based upon the cost of Goods and/or Services available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.
- Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer by completing an Order form and returning the form to the Supplier or by the Customer otherwise accepting or confirming an Order with the Supplier in writing.
- The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the operative Quote for the purposes of these Terms of Trade.
- Any indication in a Quote of the time frame for the provision of the Goods and/or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, any estimate if provided is not binding upon the Supplier.
- Every Order by the Customer for the provision of Goods and/or Services, including a Holding Order, must be submitted in writing on the Supplier’s standard Order form (unless otherwise agreed).
- An Order or Holding Order will not be deemed to be placed by the Customer unless the Order clearly identifies the Goods and/or Services ordered and the Supplier’s Quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
- Orders must be signed by an authorised representative of the Customer and may specify, a preferred date of delivery.
- Placement of an Order or Holding Order by the Customer signifies acceptance by the Customer of the most recent Quote.
- The Supplier may in its absolute discretion refuse to provide Goods and/or Services where:
- Goods and/or Services are unavailable for any reason whatsoever;
- credit limits cannot be agreed upon or have been exceeded; or
- payment for Goods and/or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
- An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
6. Holding Orders
- Where a Customer places a Holding Order that is accepted by the Supplier pursuant to these Terms of Trade, at the time of placing the Holding Order, the Customer must provide the Supplier with a Holding Deposit being fifteen percent (15%) of the value of the Holding Order plus GST.
- In the event the Holding Order is cancelled by the Customer:
- the Holding Deposit and/or any amount paid by the Customer to the Supplier is non-refundable and all amounts paid to the Supplier will vest absolutely in the Supplier;
- where a Customer placed a Holding Order but did not, for whatever reason pay a Holding Deposit, the Customer is liable to pay an amount equal to the Holding Deposit plus GST to the Supplier for consideration of the Supplier’s acceptance of the Holding Order and acts of part performance by the Supplier in reliance of the Holding Order.
- The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
- If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods and/or Services.
- The Supplier has an automatic extension of time for the provision of the Goods and/or Services equal to the delay caused by the variation.
8. Invoicing and payment
- The Supplier may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
- prior to commencing the provision of the Goods and/or Services, for an amount equal to the Quote and any Additional Charges if applicable;
- at the end of each week until the Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote and any Additional Charges (the proportion to be calculated at the Supplier’s discretion either for Goods provided and/or Services rendered to that point, for the future or both) and require that proportion of the Quote and any Additional Charges be paid in advance of any further Goods and/or Services being provided; or
- upon completion of the provision of the Goods and/or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the Goods and/or Services provided in completing the Order and for any Additional Charges.
- The amount payable in an invoice is as per the Quote and any Additional Charges.
- The Customer must pay a valid tax invoice issued by the Supplier within the period specified in the invoice. Where no period is specified in an invoice, the Customer must pay within 14 days of an invoice being issued to the Customer. Subject to previous written arrangement between the Supplier and the Customer, the Customer must pay any invoice prior to delivery of the Goods and/or provision of the Services by:
- Payment by cash, electronic funds transaction or credit card; or
- Where an Established Account Customer, strictly as per approved account payment terms. The foregoing notwithstanding, the Supplier may, at any time amend, alter or revoke such payment terms in its absolute discretion and/or where inconsistent with these Terms of Trade.
- If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods and/or Services until overdue amounts are paid in full.
- The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
- The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods and/or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
- The Customer is to pay the Supplier on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to the Supplier, calculated daily from the date immediately following the date specified in an invoice for payment or where no period is specified in an invoice from 15 days following issuance of an invoice.
- All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Terms of Trade.
- The Customer and the Supplier agree to comply with their obligations in relation to GST under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST or similar impost or duty.
9. Additional Charges
- The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods and/or Services within the specified time frame (if any).
- The imposition of Additional Charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in loss to the Supplier, including without limitation, storage costs for goods not collected from the Supplier within 2 weeks of the date on which the Goods are ready for delivery or otherwise propagated, or created at the rate set out in the Quote, photocopying, communication costs, couriers, packing and handling, Government or council taxes or charges, additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the quoted cost.
10.1 Delivery Terms
- Terms governing delivery are specified in the ‘Delivery Charges and Conditions’ document, as varied from time to time by the Supplier, and by these Terms of Trade. In the event of an inconsistency between the ‘Delivery Charges and Conditions’ and these Terms of Trade, the ‘Delivery Charges and Conditions’ document shall prevail to the extent of the inconsistency.
- Delivery is charged for at the rates specified in the ‘Delivery Charges and Conditions’ document, as varied from time to time by the Supplier.
- Delivery by the Supplier or by any agent or third-party carrier to the Customer will be to kerb side, being the side of the pavement that is nearer to the kerb, unless prior and specific arrangements are made.
- In compliance with Work Health and Safety Laws, all unloading of Goods exceeding forty-five litres (45L) will require onsite machinery and/or physical assistance by the Customer and/or the Customer’s agent or receiver. Failure to provide machinery or assistance on site by the Customer may result in Goods not been delivered and Additional Charges to the Customer. Where the Customer is unequipped to provide machinery or assistance necessary for a delivery, it is the Customer’s responsibility to advise and make separate arrangements with the Supplier.
- Any delivery times made known to the Customer are estimates only and the Supplier is not liable for late delivery or non-delivery.
- Deliveries are carried out on Monday to Friday from 7:00 a.m. to 2:30 p.m., excluding public holidays. Deliveries outside these hours or urgent deliveries will be subject to Additional Charges.
- The Supplier will not be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or provision of the Goods and/or Services.
- The Supplier will not be liable for any loss, damage or injury occasioned to the Customer or its agents, employees or customers arising from the delivery or unloading of the Goods and/or provision of Services.
- If the Customer is unwilling or unable to accept delivery of the Goods on the nominated date, the Supplier shall be entitled to charge an Additional Charge for any delay in delivery and/or arrange for the storage of the Goods at the risk and cost of the Customer, including, without limitation, all transportation, storage and other costs.
- The Supplier may at its option deliver the Goods to the Customer in any number of instalments unless there is an endorsement to the effect that the Customer will not take delivery by instalments.
- If the Supplier delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
- this does not constitute a repudiation of these Terms of Trade; and
- the defective instalment is a severable breach that gives rise only to a claim for compensation.
11. Loss or damage in transit
- The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Supplier is legally responsible for the actions of that person).
- The Supplier must provide the Customer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Customer:
- has notified the Supplier and the carrier in writing immediately after loss or damage is discovered on receipt of Goods; and
- serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.
12. Acceptance of Goods
If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 24 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
13. Title and risk
13.1 Title to Goods
- The risk of loss of, or damage to, the Goods will pass to the Customer upon the earlier of:
- Actual or constructive delivery of the goods to the Customer; and
- Collection of the goods from the Supplier or any bailee or agent of the Supplier by any agent, carrier or courier whomsoever for the purpose of delivery.
- Title to any Goods delivered to the Customer pursuant to these Terms of Trade will not pass to the Customer until the Customer has paid all amounts that it owes to the Supplier in full, including accounts owed or owing in respect of other transactions between the Supplier and Customer. Where such Goods are supplied by the Supplier to the Customer without payment of such accounts, the Customer:
- is a bailee of the Goods until property in them passes to the Customer; and
- irrevocably appoints the Supplier its attorney to do all acts and things necessary to ensure the Supplier’s retention of title to the Goods, including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
- grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this Clause 13. The Customer indemnifies the Supplier in respect of any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.
- The Supplier consents to the Customer selling or otherwise disposing of the Goods in the ordinary course of the Customer’s business.
13.2 Dealings with Goods
- Until it has paid for them in full, the Customer must keep the Goods separately stored and marked as the property of the Supplier from other goods which are held by the Customer.
- Until it has paid for them in full, the Customer must not do any of the following in relation to any of the Goods except where they are sold or otherwise disposed of in the ordinary course of the Customer’s business as contemplated by these terms of trade:
- create or allow any interest in, or dispose or part with possession of, the Goods;
- allow the Goods to be taken outside Australia;
- allow the Goods to become an accession to or commingled with any other property
- The Customer must notify the Supplier if anything mentioned in clause (b) occurs immediately upon becoming aware of it.
- In the event the Customer allows the Goods to become an accession to or commingled with any other property and in doing so 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 the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under these Terms of Trade or any other contract have been made and the Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.
- For the avoidance of doubt, under paragraph (d), the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
- Notwithstanding paragraph (b) the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:
- 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 the Supplier, in a separate account, until all amounts owned by the Customer to the Supplier have been paid; or
- where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.
If the Customer sells or disposes of any Goods before it has paid for them in full, the Customer will hold the proceeds of sale or disposal on trust for the Supplier to secure payment of the amount the Customer owes the Supplier for the Goods. The Customer must pay all monetary proceeds, up to the amount owed, into a separate account until they are paid over to the Supplier, and must not mix them with any other amount or use them to pay a debt.
13.4 Recovery of Goods
If the Customer does not pay the Supplier the amount the Customer owes the Supplier for the Goods within fourteen (14) days of the due date for payment, the Supplier may re-take possession of the Goods. The Supplier may enter any land or premises for the purpose of re-taking possession. If the Supplier retakes possession of any Goods, it may deal with them as it thinks fit.
14. Personal Property Securities Act
In this Clause 14 words and phrases that have defined meanings in the PPSA have the same meaning as in the PPSA unless the context indicates otherwise.
14.2 Accessions and commingling
If any Goods become an accession to or other property or become part of a product or mass, then:
- the Supplier’s security interest continues in the other property, product or mass; and
- references to the Goods in clause 13 and this clause 14 include the other property, product or mass.
14.3 Consent to registration
The Customer consents to the Supplier perfecting any security interest that it considers this document provides for by registration under the PPSA. The Customer agrees to do anything the Supplier reasonably asks to ensure that the security interest:
- is enforceable, perfected and otherwise effective; and
- has priority over all other security interests.
14.4 Waiver of notices and information requests
- To the extent the law permits, the Customer waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA. However, this does not prevent the Supplier from giving a notice under the PPSA.
- The Customer agrees not to exercise its rights to make any request of the Supplier under section 275 of the PPSA. However this does not limit the Customer’s rights to request information other than under section 275.
14.5 Enforcement of Security Interest
- To the extent the law permits, the Supplier need not comply with, and the Customer may not exercise rights under, any provisions of Chapter 4 of the PPSA that may be contracted out of.
- If the Supplier exercises a right, power or remedy in connection with this document or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless the Supplier states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
Neither the Customer nor the Supplier will disclose any information of the kind mentioned in section 275(1) of the PPSA, except where disclosure is required by section 275(7) or where otherwise compelled to by law or where necessary to related entities, advisers or assignees. The Customer will not authorise the disclosure of any information under that section or waive any duty of confidence that would otherwise permit non-disclosure under that section.
14.7 Changes in the Customer’s Details
- The Customer must notify the Supplier at least 14 days before it does any of the following:
- changes its name;
- changes its place of registration or incorporation;
- changes or applies for an ACN, ABN, ARBN or ARSN under which an interest in any of the Goods is or will be held.
- The Customer must notify the Supplier if anything mentioned in clause (a) occurs immediately upon becoming aware of it.
14.8 Governing Law
To the extent the law permits, any security interest that this document provides for is governed by the law of New South Wales and of the Commonwealth of Australia applying there.
15. Agency and assignment
- The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these Terms of Trade.
- The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms of Trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these Terms of Trade.
- The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms of Trade without the prior written consent of the Supplier.
16. Default by Customer
- Each of the following occurrences constitutes an event of default:
- the Customer breaches or is alleged to have breached these Terms of Trade for any reason (including, but not limited to, defaulting on any payment due under these Terms of Trade) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
- the Customer, being a natural person, commits an act of bankruptcy;
- the Customer, being a corporation, is subject to:
- a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
- a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
- the entering of a scheme of arrangement (other than for the purpose of restructuring);
- any assignment for the benefit of creditors;
- the Customer purports to assign its rights under these Terms of Trade without the Supplier’s prior written consent;
- the Customer ceases or threatens to cease conduct of its business in the normal manner.
- Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
- terminate these Terms of Trade;
- terminate any or all Orders and credit arrangements (if any) with the Customer;
- refuse to deliver Goods or provide further Services;
- pursuant to clause 13 repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
- retain (where applicable) all money paid on account of Goods or Services or otherwise.
- In addition to any action permitted to be taken by the Supplier under paragraph (b), on the occurrence of an event of default all invoices will become immediately due and payable.
In addition to the express rights of termination provided in these Terms of Trade, a party may terminate these Terms of Trade by giving 30 days written notice to the other party.
18. Exclusions and limitation of liability
- The Customer expressly agrees that use of the Goods and/or Services is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these Terms of Trade by any law is excluded.
- All information, specifications and samples provided by the Supplier in relation to the Goods and/or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods and/or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
- The Supplier gives no warranty in relation to the Goods and/or Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods and/or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
- any Goods and/or Services supplied to the Customer;
- any delay in supply of the Goods and/or Services; or
- any failure to supply the Goods and/or Services.
- Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
- To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods and/or Services, or otherwise arising out of the provision of Goods and/or the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
- The Customer acknowledges that the Goods and/or Services are not for personal, domestic or household purposes.
- The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
- The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods and/or Services, any Order or the subject matter of these Terms of Trade including, but not limited to any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal costs for which the Supplier is liable in connection with any such claim or demand. This provision remains in force and will not merge on the termination of these Terms of Trade.
- If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods and/or Services, the Supplier is free from any obligation to provide the Goods and/or Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
- Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
20. Other matters
- These Terms of Trade are governed by the laws of the state of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
- These Terms of Trade and any Quotes, Orders and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
- These Terms of Trade govern all oral and written negotiations and communications by and on behalf of either of the parties, except as varied by written agreement.
- In entering into these Terms of Trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.
- If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by e-mail to the e-mail address of the addressee specified in the relevant Quote with acknowledgement of delivery.
- A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or e-mail before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
- A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.