Fairview Terms and Conditions

Definitions and Interpretation
1. Australian Consumer Law means the Law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.
2. Authority means any entity, body or organisation having jurisdiction over the Goods, the supply of the Goods and matters relating thereto.
3. Business Day means a day except for:
  1. Saturday, Sunday, or public holiday in the State of New South Wales; and
  2. 27, 28, 29, 30 and 31 December, 2, 3, 4, 5, 6 and 7 of January
4. Buyer means the company, firm, or persons to whom or which the Goods are to be supplied under a Supply Contract.
5. Claim means any claim, action, suit, cause of action, cost, expense, demand, liability, whether by way of indemnity, under contract, in equity, under statute, in tort or otherwise and any other liability of any nature.
6. Consumer has the meaning given in section 3 of the Australian Consumer Law. For the avoidance of doubt, the Buyer will be acquiring the Goods as a Consumer if:
  1. the amount paid or payable for the Goods does not exceed $40,000; or
  2. the Goods are of a kind ordinarily acquired for personal, domestic, or household use or consumption.
  3. Notwithstanding paragraphs (a) and (b), the Buyer will not be acquiring the Goods as a Consumer if the Buyer acquires the goods, or held himself or herself out as acquiring the Goods:
    1. for the purposes of re-supply; or
    2. for the purpose of using them up or transforming them, in trade or commerce:
      a) in the course of a process of production or manufacture; or
      
      b) in the course of repairing or treating other goods or fixtures on land.
7. Consumer Guarantee means a right or guarantee the Buyer may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.
8. Consequential Loss means:
  1. any
    a) loss of profits;
    b) loss of revenue;
    c) loss of production;
    d) loss or denial of opportunity;
    e) loss of or damage to goodwill;
    f) loss of business reputation, future reputation or publicity;
    g) loss of use;
    h) loss of interest;
    i) losses arising from claims by third parties;
    j) loss of or damage to credit rating;
    k) loss of anticipated savings; and
    l) loss of contract,
    m) whether direct, indirect, or consequential; and
  2. any other loss, damage or cost incurred that is indirect or consequential (whether the same or different to the types of losses set out in (a)).
9. Credit Card Transaction means a transaction using the "credit" function of a credit card using the Visa or MasterCard payment system.
10. Credit Terms means credit terms provided by the Seller to the Buyer following approval of an Application for Credit Terms in accordance with clause 13.3.
11. Custom Order means Goods that have been specifically customised by the Seller to meet the Buyer's specific requirements as set out in an Order.
12. Defect means an error or defect in the Goods due to faulty material or workmanship for which the Seller is responsible.
13. Delivery Date means the date identified as such in an Order or as otherwise agreed between the Seller and the Buyer
14. Deposit means the deposit listed in an Order as security for any containers / pallets used to deliver Goods.
15. Due Date means, as applicable:
  1. where Credit Terms have not been extended, upon acceptance of an Order by the Seller; or
  2. where Credit Terms have been extended, 30 days from the date the Seller issues an invoice to the Buyer.
16. Expiry Date means the date that is:
  1. 2 years from the date of a Supply Contract; or
  2. the date of completion of the last outstanding Order issued before the date in paragraph (a),
  3. whichever is the later provided that if the parties agree to extend this date it shall mean the date as so extended.
17. Force Majeure Event means any event beyond the reasonable control of a party including the following events:
  1. acts of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, revolution, insurrection, military, or usurped power or terrorism;
  2. raw material shortages, accidents, or breakdowns of plant and machinery;
  3. shipping congestion at port of loading/unloading, blockades, embargos, shortage of transport, import restrictions or currency restrictions;
  4. act (or failure to act) of Authorities (unless such act is the requirement of Authorities to either party to comply with any mandatory Law in force at the commencement of a Supply Contract);
  5. sabotage, strikes, lockouts, go-low or any other industrial dispute or disturbance; and
  6. acts of God including all severe weather conditions, natural disasters, earthquakes, volcanic activity, hurricanes, cyclones, floods, fires, tsunamis, disease and/or virus of epidemic or pandemic proportions and lightning strikes.
18. Goods means those goods to be supplied by the Seller to the Buyer under a Supply Contract.
19. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
20. Intellectual Property Rights means all intellectual property and industrial rights of any description including without limitation all rights conferred by statute, common law or equity (whether or not registered) in relation to inventions (including patents), trademarks, designs, copyright, circuit layout rights, trade secrets, know-how and confidential information and all other rights of a proprietary nature created as a result of intellectual activity in the industrial, scientific, literary and artistic fields.
21. Insolvency Event means:
  1. a party informs the other in writing, or creditors generally, that the party is insolvent or is financially unable to proceed with its contractual obligations;
  2. execution is levied against a party by a creditor;
  3. in relation to a party being a corporation, trust, or body politic: a) notice is given of a meeting of creditors with a view to the corporation entering a deed of company arrangement;
    b) it enters a deed of company arrangement with creditors;
    c) a controller or administrator is appointed;
    d) an application is made to a court for its winding up and is not stayed within 14 days;
    e) a winding up order is made in respect of it;
    f) it resolves by special resolution that it be wound up voluntarily (other than for a member's voluntary winding up); or
    g) a mortgagee of any of its property takes possession of that property; and
  4. if the party is an individual person or a partnership including an individual person, that he or she: a) commits an act of bankruptcy;
    b) has a bankruptcy petition presented against his or her or presents his or her own petition;
    c) is made bankrupt;
    d) makes a proposal for a scheme of arrangement or a composition; or
    e) has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor's petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cth) or like provision under the law governing this agreement.
22. Law means applicable:
  1. statutes, rules, regulations, by-laws, orders, awards, codes, standards, ordinances, and proclamations of the jurisdiction where the supply of Goods under a Supply Contract or a particular part is being carried out;
  2. approvals, consents, declarations, directions, exemptions, notarisations, licences, permits, certificates, waivers, or other authorisations, however described, required by any Law, and includes any renewal or amendment. and requirements of authorities or organisations having jurisdiction where the supply of Goods under a Supply Contract or a particular part is being carried out; and
  3. fees, charges, taxes, tariffs, and duties payable in connection with the foregoing.
23. Major Failure in respect of Goods, has the meaning given to that term in section 260 of the Australian Consumer Law.
24. Order means a written or verbal order for Goods in such form as accepted by the Seller..
25. Personnel means the employees, officers, agents, consultants, contractors, or subcontractors of a party to a Supply Contract.
26. Point of Delivery means the delivery address identified in an Order or as otherwise agreed between the Seller and the Buyer.
27. PPSA means the Personal Property Securities Act 2009 (Cth).
28. Price means the price payable for the Goods identified in an Order, as may be adjusted in accordance with a Supply Contract.
29. Price List means the Seller's price list for Goods as updated by the Seller from time to time.
30. Supply Contract means a supply contract for Goods which includes an Order, these terms and conditions and any other document referred to therein.
31. Seller means FVA Group Pty Ltd ABN 45 632 824 698.
32. Seller's Offer means the offer by Seller to supply Goods (and includes any special conditions contained in such offer or any others documents attached by the Seller or which the Seller agrees are incorporated by reference).
33. Tax or Taxes means all forms of present and future taxes (but excluding income tax), excise, stamp or other duties, imposts, deductions, charges, withholds, rates, levies or other government impositions imposed, assessed, or charged by any government agency, together with all interest, penalties, fines, expenses, and other additional statutory charges relating to any of them, imposed or withheld by a government agency.
34. In this document, unless otherwise indicated to the contrary:
  1. a reference to days means calendar days and references to a person include an individual, firm, or a body, corporate or unincorporated;
  2. the time for doing any act or thing under a Supply Contract shall, if it ends on a day which is not a Business Day, be deemed to end on the next day which is a Business Day;
  3. a reference to these terms and conditions or any other document or agreement includes any variation, replacement, or novation of them;
  4. the use of the word “include”, “includes” or “including” shall be interpreted to mean “include”, “includes” or “including” without limitation;
  5. words in the singular include the plural and vice versa;
  6. headings are for ease of reference only and do not affect interpretation;
  7. no rule of construction shall apply to the disadvantage of the Seller on the basis that the Seller put forward the Supply Contract or any part of it;
  8. a reference to “$” or “dollars” is to Australian dollars;
  9. all sums are exclusive of GST unless the context requires otherwise;
  10. a reference to a party in these terms and conditions or any other agreement or document includes the party's successors, permitted substitutes, and permitted assigns (and, where applicable, the party's legal personal representatives).
Price
1. The Price for the Goods for a particular Supply Contract is as stated on the Order or, if not so stated, as otherwise agreed by the Buyer and the Seller.
2. The cost of Taxes, any other amounts payable at Law and all insurance, transport and other handling expenses relating to the Goods from the Seller's premises shall be borne by the Buyer.
3. The Seller reserves the right to amend the Price based on foreign exchange fluctuations that relate to the cost of the Goods. In the event that the Seller exercises this right, it will provide notice to the Buyer and the Buyer has 5 days to accept or reject the revised Price.
4. If the Buyer accepts an amendment to the Price in accordance with clause 2.3 (Accepted Price), then the Price under the relevant Supply Contract will be the Accepted Price.
5. If the Buyer does not accept an amendment to the Price in accordance with clause 2.3, then the parties will enter into negotiations in good faith to determine a new Price with considerations for the relevant foreign exchange fluctuations raised by the Seller. If the parties fail to reach an agreement on a new Price within 14 days or within any other timeframe as agreed between the parties in writing, then the Supply Contract will be deemed to have been terminated by the Seller under clause 21.3.
Ordering, Delivery, Delay and Acceptance
1. Upon the Buyer placing a proposed Order, the Seller will provide acceptance of the Order.
2. The written acceptance of the Order is subject to variation by the Seller based on the following:
  1. Availability of materials;
  2. Changes in prices; and
  3. Regulatory changes and/or events.
3. In the event that the Seller determines, in its absolute discretion, to vary the Order after acceptance, it will notify the Buyer and the Buyer has 5 days to accept or reject the revised Order.
4. The Seller may make partial deliveries and separately invoice Goods unless otherwise agreed between the parties in writing.
5. The Seller will make all reasonable efforts to deliver the Goods to the Buyer by the Delivery Date.
6. Notwithstanding any delay by the Seller, the Buyer shall be bound to accept and pay for delivered Goods in full provided that delivery is made by the Seller within 30 days of the Delivery Date.
7. If an act or omission of the Buyer or the Buyer's Personnel or an event beyond the reasonable control of the Seller, including but not limited to a Force Majeure Event, causes delay to the Seller, the time for performance of the Seller's obligations under a Supply Contract shall be extended for a period of time equal to the period of delay and the Seller will notify the Buyer of the resultant date.
Repacking Fee
1. Any changes by the Buyer to the content and delivery of a Supply Contract which the Seller accepts may incur a repacking fee of $150 to be charged to the Buyer, to be levied at the Seller's absolute discretion, which shall become due and payable by the Buyer on demand from the Seller.
Returns and Cancellations
1. Subject to clauses 13 and 14, a Supply Contract may only be terminated, or Goods returned for credit with the prior written approval of the Seller (which may be withheld in the Seller's absolute discretion). If the Seller gives written approval for Goods to be returned pursuant to this clause, the Goods must be returned in the same re-saleable condition as when they were originally sold, and all costs of return (including the Seller's costs and freight costs) must be borne by the Buyer.
2. Unless a return of Goods is due to the Seller's error, the Buyer will incur a restocking fee of 30% of the invoice price or $150.00, whichever is the greater, which amount shall become due and payable on demand by the Seller to the Buyer.
3. Notwithstanding clauses 5.1 and 5.2, but subject to clauses 13 and 14, any Custom Orders or any other Goods specifically manufactured, processed, or purchased on behalf of the Buyer that meet the Buyer's specific request, may not be returned.
Storage
1. The Seller may charge the Buyer its reasonable costs incurred in connection with the storage of Goods if delivery instructions including Point of Delivery are not provided by the Buyer promptly or delays to the reasonable delivery of goods are requested by the Buyer, in any event, within 5 Business Days of a request by the Seller for such instructions. The parties agree that if costs for storage are charged to the Buyer in accordance with this clause 6.1, then the Seller may charge for storage from the next day after the Seller requests the Buyer to provide delivery instructions. The costs the subject of this clause shall become due and payable by the Buyer upon demand by the Seller.
Offloading Goods
1. The costs of unloading Goods at the Point of Delivery (including the provision of labour, materials and equipment, compliance with any restrictions on access to the Point of Delivery and insurance cover) shall be the sole responsibility of the Buyer.
2. The Buyer indemnifies and shall keep the Seller indemnified from and against any and all Claims arising from or in connection with the unloading of Goods.
3. The parties acknowledge and agree that an allowance of two (2) hours is given by the Seller to the Buyer for the unloading of Goods which commences from the time of arrival of the Goods at the Point of Delivery. Any additional time required is to the Buyer’s account at the Seller’s reasonable delivery rates, such amount to become due and payable by the Buyer upon demand by the Seller. Special equipment and any demurrage is to the Buyer’s account.
Containers and Pallets
1. Containers and/or pallets in which Goods are delivered and for which a Deposit is payable by the Buyer, remain the property of the Seller and must not be used for any other purpose other than to facilitate delivery of the Goods.
2. The containers and/or pallets must be returned at the Buyer's cost to the premises of the Seller:
  1. in good order and condition by the Buyer; and
  2. within 28 days of delivery of the Goods,
  3. upon which the full amount of the Deposit will be repaid to the Buyer by the Seller.
3. The Seller shall be entitled to the Deposit if the Buyer does not comply with clause 8.2.
4. At all times, the Seller retains the right of possession of any containers and/or pallets used for delivery of the Goods.
5. In addition to any other rights of the Seller under this clause 8, the Buyer agrees to indemnify the Seller in respect of any costs, loss or damage resulting from any containers and / or pallets not being returned in accordance with clause 8.2.
Risk
1. Risk in the Goods will pass to the Buyer immediately upon unloading of the relevant Goods at the Point of Delivery.
Title and Recovery of Goods
1. Title and property in the Goods shall remain with the Seller, and the Buyer holds the Goods as the Seller's bailee and fiduciary agent, irrespective of delivery of the Goods to the Point of Delivery, until such time as full payment is made to the Seller for all amounts owing by the Buyer under or in connection with a Supply Contract.
2. If the Buyer fails to make payment for the Goods in accordance with the terms of a Supply Contract then the Seller shall have the right to enter the Buyer's premises in order to effect recovery of any Goods for which title has not passed and use any means available and not prohibited by Law in order to effect recovery of the relevant Goods and the Seller shall have the right to resell or otherwise dispose of the Goods so recovered without reference to the Buyer.
3. Until the Buyer has made payment for the Goods in full, the Buyer must ensure and must satisfy the Seller that the Goods have been properly stored, protected, and labelled the property of the Seller and not mix the Goods with other property.
4. If any of the Goods are incorporated into other property or used by the Buyer as parts, components or materials in respect of any other product of the Buyer or a third party before payment in full has been made for the Goods then the title in the whole of the product into which the Goods have been incorporated shall be vested in the Seller until such time as payment for the Goods has been made in full by the Buyer.
Security Interest Under the PPSA
1. The retention of title arrangement described in a Supply Contract constitutes the grant of a purchase money security interest by the Buyer in favour of the Seller in respect of all present and after-acquired Goods supplied to the Buyer by the Seller.
2. The Buyer must immediately, if requested by the Seller sign any documents, provide all necessary information, and do anything else required by the Seller to ensure that the Seller's purchase money security interest is a perfected security interest.
3. The Buyer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Seller has perfected its purchase money security interest.
4. For any Goods supplied that are not goods that are used predominantly for personal, domestic, or household purposes, the parties agree to contract out of the application of ss95, 118, 121(4), 130, 132(4), 135, 142 or 143 of the PPSA in relation to those Goods.
5. The Buyer hereby waives any rights the Buyer may otherwise have to:
  1. receive any notices the Buyer would otherwise be entitled to receive under ss95, 115, 118, 121, 130, 132 or 135 of the PPSA;
  2. receive information under s275 of the PPSA;
  3. apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
  4. object to a proposal of the Seller to dispose, purchase or retain any collateral under ss130 and 135 of the PPSA;
  5. receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Seller may have in Goods supplied to the Buyer from time to time.
6. For the purpose of this clause "PPSA" means the Personal Property Securities Act 2009. The expressions "accession", "collateral', "financing statement", "financing change statement", "security agreement", "security interest", "perfected security interest" and "verification statement" have the meaning given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
GST and Tax
1. The Price is exclusive of Tax (including GST) which is payable in relation to the supply and delivery of the Goods. The Buyer must pay any such Taxes.
2. If GST is payable in relation to a Taxable Supply the amount payable for that Taxable Supply will be the amount payable in accordance with a Supply Contract plus GST. The Seller and the Buyer must provide each other with all documentation, including a Tax Invoice required to claim any Input Tax Credit, set-off, rebate or refund for or in relation to any GST included in any payment made under a Supply Contract.
3. In this clause 11 the expressions “GST”, “Input Tax Credit”, “Tax Invoice” and Taxable Supply have the meaning given to those expressions in the GST Act.
Payment
1. Payment is due on the Due Date.
2. Notwithstanding clause 13.1, Custom Orders where Credit Terms have been extended require a deposit of 30% of the Price upon commencement of the Supply Contract and payment in full prior to delivery of the Custom Order.
3. Credit Terms will only be available, at the Seller’s absolute discretion, upon approval of a written application by the Buyer (Application for Credit Terms). The form of the Application for Credit Terms will be determined by the Seller and will contain or annex such financial information and documents of the Buyer as the Seller may require (including, without limitation, the provision of personal guarantees or other forms of security).
4. If Credit Terms are extended to the Buyer and any payment in respect of the Goods is not made in full in accordance with the Credit Terms, the Seller is entitled to:
  1. terminate the relevant Supply Contract, any other agreement arising under these terms and conditions and any other contract for sale the Seller may have with the Buyer;
  2. refuse to make any further delivery of Goods to the Buyer;
  3. demand and receive immediate payment of any invoice in respect of an agreement arising under these terms and conditions whether payment is then due or not; and
  4. recover possession of all Goods to which it has retained title under clause 10, in which case the Seller will credit the Buyer with any part of the Price paid by the Buyer to the Seller in respect of these Goods.
5. All losses, expenses, and costs, including legal fees on an indemnity basis, incurred by the Seller arising from or in connection with the Buyer's failure to pay on the Due Date, are recoverable from the Buyer by the Seller on demand.
6. Interest will be charged on overdue accounts at a rate equivalent to the interest rate prescribed by section 100 of the Civil Procedure Act 2005 (NSW) or any replacement thereof, until payment of the overdue account(s) plus all costs, charges, and expenses under clause 13.5 are paid to the Seller.
7. Payment of any amount by the Buyer must be treated as being received in the following order:
  1. First, in relation to obligations that are not secured ("secured" in this clause means secured under the PPSA) in the order in which those obligations were incurred;
  2. Second, in relation to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred, then;
  3. Third, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
8. The parties acknowledge and agree that:
  1. the Seller incurs fees from financial institutions when the Buyer chooses to pay for Goods using a Credit Card Transaction; and
  2. the seller reserves the right to impose a surcharge reflecting the financial institution transaction fee to the total amount of any payments made to the Seller using a Credit Card Transaction.
9. The Buyer must indemnify the Seller against all claims, losses, expenses, and costs (including legal fees on an indemnity basis) incurred or suffered by the Seller under or in connection with the Buyer’s failure to make a payment by the Due Date.
10. Any payments to the Seller that are not otherwise due and payable shall become immediately due and payable upon the Buyer suffering an Insolvency Event.
Warranty and Defects
1. Subject to clauses 15 and 17 the following are conditions precedent to the Seller's liability with respect to Goods that have a Defect:
  1. it is the Buyer’s responsibility to inspect a suitable sample of the Goods upon receipt and prior to installation to satisfy the Buyer that the Goods meet the requirements of the Order.
  2. the Buyer notifying the Seller in writing of the alleged Defect within 3 Business Days of receipt of the Goods, providing the invoice for the applicable Good and where possible, a sample of the Good to enable the Seller to carry out a proper examination and test of the Good;
  3. the alleged Goods with a Defect having been properly handled and used in accordance with any instructions issued by Seller or if no instructions have been issued, in accordance with good industry practice;
  4. such alleged Defects not being caused or contributed to by the use of equipment and/or material supplied by the Buyer or any of the Buyer's Personnel; and
  5. such alleged Defects not being caused due to fair wear and tear or improper storage by the Buyer or the Buyer's Personnel.
2. The Buyer acknowledges and accepts that whilst the Seller will make every effort to match dye lots, colours of shade, the Goods may vary between batches of product and/or between sales samples and actual product.
3. The Buyer acknowledges and agrees that Goods supplied may:
  1. fade or change colour over time; and
  2. expand, contract, or distort as a result of exposure to heat, cold, weather; and
  3. mark or stain if exposed to certain substances;
  4. and be damaged or disfigured by impact or scratching,
  5. and the Buyer releases the Seller from all Claims arising from the above occurrences.
4. The Buyer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, rating, and weights stated in the Seller’s fact sheets, Price List or advertising material are approximate only and are given by way of identification only. The Buyer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of a Supply Contract, unless expressly stated as such in writing by the Seller. The use of Fairview cladding products must be approved by a qualified engineer.
5. With the exception of Consumer Guarantees, the Seller excludes:
  1. any term, condition or warranty that may otherwise be implied into a Supply Contract;
  2. any liability for loss or damage incurred as a result of or in connection with the negligence of the Seller;
  3. and any liability for Consequential Loss.
Liability for Consumer Guarantees
1. Subject to clause 16, the liability of the Seller in respect of any breach of or failure to comply with any Consumer Guarantee is limited to the following:
  1. In the case of goods, to:a) the replacement of the goods or the supply of equivalent goods; b) the repair of the goods;
    c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    d) the payment of the cost of having the goods repaired.
  2. In the case of services, to:
    a) the supplying of the services again; or
    b) the payment of the cost of having the services supplied again.
Exception to limitation
1. The liability of the Seller in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 15.1 if:
  1. the goods or services supplied are goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
  2. it is not 'fair or reasonable' for the Seller to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
  3. the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
Liability of the Seller
1. Notwithstanding any other provision of a Supply Contract and except to the extent that liability cannot be limited or excluded by Law:
  1. the Seller's total liability arising out of or in connection with a Supply Contract or the performance or non-performance of, or anything incidental to a Supply Contract shall not exceed the Price (as adjusted strictly in accordance with a Supply Contract) payable for the Goods that have a Defect;
  2. the Seller excludes all tortious liability arising out of or in connection with a Supply Contract;
  3. It is the responsibility of the Buyer to assess whether the Goods are fit for the purpose for which they are intended to be used and the Seller is not liable for to the extent that the Goods are not fit for the Buyer's intended purpose;
  4. the Seller is not liable for any Consequential Loss suffered or incurred by the Buyer, however caused, or arising (including, without limitation, under contract, tort (including negligence), under statute or any other basis in law or equity); and
  5. any advice, recommendation, information, assistance, or service provided by the Seller in relation to the Goods or their use or application is given in good faith and is believed by the Seller to be appropriate and reliable but is otherwise provided without any warranty as to its accuracy and without any liability on the part of the Seller.
2. The parties agree that the United Nations Convention on the International Sale of Goods does not apply to a Supply Contract.
Indemnity
1. The Buyer indemnifies the Seller against all Claims, expenses, damages, and losses which the Seller suffers or incurs in connection with:
  1. any act or omission of the Buyer or the Buyer's personnel; and
  2. any breach of a Supply Contract by the Buyer.
Intellectual Property Rights
1. The Intellectual Property Rights in the Goods shall remain the exclusive property of the Seller and the Seller's third-party suppliers or licensors. The Buyer shall not remove or alter any confidentiality, copyright, trademark, or other proprietary notices appearing on the Goods.
Governing Law and Jurisdiction
1. This Supply Contract is governed by the laws of New South Wales. The parties submit to the non- exclusive jurisdiction of the courts of that State and courts entitled to hear appeals from those courts.
Termination
1. Without limiting the entitlements of the Seller, the Seller may terminate a Supply Contract by notice in writing with immediate effect if:
  1. the Buyer has not paid an amount due and payable under a Supply Contract; or
  2. the Buyer commits a material breach of a Supply Contract; or the Buyer suffers an Insolvency Event.
2. If a Supply Contract is terminated pursuant to subclause 21.1, the parties' remedies, rights and liabilities shall be the same as they would have been under the law governing the Supply Contract had the Buyer repudiated the Supply Contract and the Seller elected to treat the Supply Contract as at an end and recover damages. Unless directed otherwise by the Seller, termination of a Supply Contract or its expiry shall not affect the rights and obligations of parties under a Supply Contract created prior to such termination or expiry.
3. If a Supply Contract is terminated pursuant to subclause 21.1, the parties' remedies, rights and liabilities shall be the same as they would have been under the law governing the Supply Contract had the Buyer repudiated the Supply Contract and the Seller elected to treat the Supply Contract as at an end and recover damages. Unless directed otherwise by the Seller, termination of a Supply Contract or its expiry shall not affect the rights and obligations of parties under a Supply Contract created prior to such termination or expiry.
4. but nothing in this clause 21.3 shall affect any accrued right of the Seller to payment under a Supply Contract.
Confidential Information
1. The Buyer shall keep confidential all information of the Seller which is disclosed in connection with the supply of Goods by the Seller to the Buyer under a Supply Contract that is identified as confidential or that is of a confidential nature.
Privacy
1. The Seller's Privacy Policy is available on its website.
Dispute Resolution
1. Any dispute or difference between the parties arising out of or in connection with a Supply Contract (“Dispute”) shall be notified to the other party by written notice of that Dispute, giving details of the subject-matter of the dispute (“Notice of Dispute”).
2. Upon the giving of a Notice of Dispute, the following shall apply:
  1. the Dispute shall be submitted for negotiation by each party to a senior manager or officer of that party who has the authority to resolve the Dispute; and
  2. if within 21 days of the giving of the Notice of Dispute (or such further period agreed by the parties) the Dispute has not been resolved between the senior managers or officers of each party, the Dispute shall be referred to mediation by a mediator agreed to by the parties, or failing agreement by a mediator appointed by the President of the Law Society of New South Wales, or if they are unable or unwilling to appoint a mediator, then by the Australia Branch of the Chartered Institute of Arbitrators; and
  3. if the dispute is not resolved at the completion of the mediation, either party may commence litigation proceedings.
Entire Agreement
1. This Supply Contract supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties in respect of its subject matter.
Notices
1. Any notice to be given under a Supply Contract shall be given in writing and delivered personally or sent by pre-paid post (airmail if to or from a place outside Australia) or emailed to the other party at such address or email address listed in a Supply Contract or as a party subsequently notifies the other for the purposes of this clause 26. Any notice shall be deemed to be served:
  1. in the case of delivery in person, when delivered;
  2. in the case of delivery by post, 6 days (10 if to or from a place outside Australia) after the date of posting; and
  3. in the case of delivery by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.
Waiver
1. A failure to exercise, a delay in exercising, or a partial exercise of, a right created under or arising from a breach of a Supply Contract does not result in a waiver of that right.
Severance
1. If a provision in a Supply Contract is wholly or partly void, illegal, or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from agreement Supply Contract for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of agreement Supply Contract.
Assignment
1. The Seller may assign or replace all or any part of its rights and obligations under a Supply Contract. Unless otherwise provided in this Contract, the Buyer must not assign, create an interest in or otherwise deal with its rights or obligations under a Supply Contract without the prior written consent of the Seller (in its absolute discretion).
Survival of Clauses
1. All clauses that are capable of surviving the expiration or earlier termination of a Supply Contract shall do so. For the avoidance of doubt clauses 1, 17, 18, 19, 22 and this clause 30 shall survive any expiration or earlier termination of a Supply Contract.
New Zealand Specific Clauses
1. If the Buyer is resident in New Zealand or operating in New Zealand, the following terms and conditions will apply in addition to the above clauses.
2. Where there is any inconsistency or contradiction between these terms and conditions and the above clauses, these terms and conditions will take precedence:
  1. Definitions and Interpretations a) Consumer has the meaning given in section 2 of the New Zealand Consumer Law. If the Goods are not of a kind ordinarily acquired for personal, domestic, or household use or consumption, or are being acquired for the purpose of resupplying them in trade, consuming them in the course of a process of production or manufacture, or repairing or treating in trade other goods or fixtures on land, then the New Zealand Consumer Law will not apply. b) Failure of a Substantial Character in respect of goods has the meaning defined in section 21 of New Zealand Consumer Law.
    c) GST means goods and services tax in terms of the GST Act, at the rate prevailing from time to time.
    d) GST Act means the Goods and Services Tax Act 1985 (NZ).
    e) New Zealand Consumer Law means the Consumer Guarantees Act 1993 (NZ).
    f) PPSA means the Personal Properties Securities Act 1999 (NZ).
  2. When Buyer is a Consumer a) If any supply of Goods under these terms and conditions to the Buyer is a supply to a Consumer, then the following applies: [i] if the Buyer is acquiring the Goods in trade, the parties agree that the provisions of the New Zealand Consumer Law are excluded and will not apply to the supply of the Goods, and that such exclusion is fair and reasonable;
    [ii] if the Buyer is not acquiring the Goods in trade, the Goods come with the applicable guarantees under the New Zealand Consumer Law and the Buyer will be entitled to the applicable rights and remedies provided under the New Zealand Consumer Law; [iii] no other warranties either express or implied by law are made with respect to the Goods.
  3. PPSA a) The Buyer hereby waives all rights pursuant to, and contracts out of, the following provisions of the PPSA:
    [i] section 114(1)(a) (debtor's right to receive notice of sale of collateral by secured party);
    [ii] sections 133 and 134 (debtor's rights to reinstate a security agreement after default);
    [iii] section 116 (right to receive a statement of account);
    [iv] sections 120(2) and 121 (requirement that secured party give notice to the debtor if it proposes to take collateral in satisfaction of an obligation and a debtor's right to object);
    [v] sections 125, 126, 127, 129 and 131 (relating to removal of an accession).
  4. The Buyer waives its rights to receive anything from the Seller under section 148 of the PPSA (requirement that secured party notify debtor of registration of financing statement) and agrees not to make any request of the Seller under that section.
  5. The Buyer consents to the Seller perfecting its interest in any Goods provided by the Seller to the Buyer by registration under the PPSA and agrees to do anything reasonably requested by the Seller to enable it to do so.

TERMS AND CONDITIONS OF SUPPLY