Detail Door Hardware Perth and Geelong
Terms and Conditions
a) In these Trading Terms:
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
“CCA” means the Competition and Consumer Act 2010 (Cth);
“Company” means and includes Detail Door Hardware Pty Ltd (ACN 050 464 027) trading as Detail Architectural Hardware Solutions.
“Consumer” means a person acquiring Goods:
i) of a kind ordinarily acquired for personal, domestic or household use or consumption; or
ii) at a price not exceeding $40,000; or
iii) of a kind ordinarily acquired for personal, domestic or household use or consumption; or
iv) that consist of a vehicle or trailer acquired for use principally in the transport of goods on public roads,but excludes a person acquiring the Goods, or holding himself or herself out as acquiring the Goods for the purpose of:
v) re-supply; or
vi) using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
“Consumer Goods” means ‘goods of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the Australian Consumer Law.
“Consumer Guarantee” means a consumer guarantee applicable to this contract under the Australian Consumer Law, including any Express Warranty.
“Consumer Services” means ‘services of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the Australian Consumer Law.
“Customer” means the person described in the accompanying application for a 30 day account as the person in whose name an account is maintained by the Company and/or the person or entity that purchases Goods and services from the Company.
“Express Warranty” has the same meaning as in section 2(1) of the Australian Consumer Law.
“Fair or Reasonable” means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.
“Force Majeure Event” is defined in clause 16.
“Financing Statement” and “Financing change statement” means a “financing statement” and a “financing change statement” within the meaning of section 10 of the PPSA.
“Goods” means any goods supplied by the Company to the Customer under these Trading Terms.
“GST” means “GST” within the meaning of the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended) and the following expressions bear the same meaning as in the GST Act: “tax invoice”, “taxable supply” and “value”.
“Insolvency Event” means, in relation to a party, that one of the events specified in clause 16 has occurred in relation to that party.
“Intellectual Property” means any intellectual property including without limitation patents, trademarks, copyright, designs, layouts, circuit boards, knowhow, software, object codes, source codes, and confidential information.
“PMSI” means a purchase money security interest as defined in section 14 of the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Proceeds” means “proceeds” within the meaning of section 31 of the PPSA.
“Register” means the Personal Property Securities Register established under the PPSA.
“Security Agreement” means a “security agreement” within the meaning of section10 of the PPSA.
“Security Interest” means a “security interest” within the meaning of section 12 of the PPSA.
b) Terms and expression defined in or for the purposes of the CCA or the PPSA have the same meaning when used in these Trading Terms.
a) These Trading Terms apply to:
i) The establishment, operation and use of the account of the Customer with the Company;
ii) All transactions effected by the Customer with the Company for the supply of goods or services on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of goods; and
iii) The exclusion of all others including any terms and conditions of the Customer.
b) These Trading Terms shall apply as if incorporated into each order placed by the Customer with the Company.
c) These Trading Terms may be varied only with the written agreement of the Company.
a) The Customer may place and the Company may accept or reject orders in part or full for the supply of goods upon these Trading Terms by:
i) A communication in writing (including by e-mail); or
ii) Any other means that the parties agree including by telephone and by internet ordering.
b) The Company reserves the right to specify a minimum order value which it will accept from time to time and to impose a surcharge should the Customer require delivery of goods having a value less than the minimum order value.
c) Orders accepted by the Company cannot be cancelled or altered in whole or in part without the Company’s written consent.
d) Goods ordered by the Customer shall be supplied ex-stock of the Company. In the event that the Company is out of stock of any Goods ordered by the Customer at the time that they are required for delivery, any undelivered stock shall be placed on back order and shall be delivered as soon as possible after they become available, unless the Customer has within two (2) working days of receipt of the invoice showing the back order, notified the Company that they no longer require the Goods.
4. Pricing & Delivery
a) All prices quoted or agreed are on a tax exclusive basis. The applicable amount of GST or other taxes will be disclosed on invoices.
b) The prices and product specifications in published price lists are subject to alteration without notice, including the right to correct printing and clerical errors without notice. The Company will make every attempt to advise the Customer of any increase in any published price list.
c) Unless otherwise agreed in advance, the Company reserves the right to:
i) charge the Customer for the cost of freight.
Ii) charge for re-scheduling and delivery for all variations to the original contract.
iii) adjust prices if and when necessary prior to acceptance of any offer from the Customer.
d) Whilst the Company shall use all reasonable endeavours to comply with the Customer’s particular delivery requirements and order specifications, the Customer will not be entitled to claim compensation by reason of failure to comply with their delivery requirements or minor variations to the Goods.
e) Where Goods have been sourced from countries other than Australia, the Company reserves the right to request payment from the Customer for increase in costs caused through fluctuations in exchange rates, interest rates, customs duty, shipping costs, clearance and wharf-age charges. Failure by the Customer to accept such charges may result in cancellation of the Goods by the Company on the overseas supplier.
f) Where Goods have been sourced from countries other than Australia the price of such Goods includes the cost of sea freight. The Goods may be air freighted at an additional cost.
g) Unless otherwise stated all prices are expressed in Australian dollars.
5. Withholding Supply
The Company reserves the right, irrespective of whether or not an order has been accepted and without notice to the Customer, to withhold supply to the Customer and/or to cancel any obligation it may have to the Customer and the Company will not be liable for loss of damage resulting directly or indirectly from such action where:
a) The Company has insufficient Goods to fulfill the order;
b) The Goods ordered have been discontinued;
c) the Customer has failed to observe these Trading Terms or the Company’s payment terms or
d) The Company has determined, in its absolute discretion, that credit should no longer be extended to the Customer.
6. Payment Terms
a) The Customer must (unless otherwise agreed in writing) pay the Company for goods or services supplied by the Company by the last day of the month following the month in which the Goods or services are supplied.
b) If the Customer does not make payment as required by paragraph 6(a), the Company reserves the right to charge the Customer by way of liquidated damages for breach of contract, a default charge in relation to the unpaid amount calculated by applying an interest rate being the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic) plus an additional 2% to the unpaid amount on a daily basis from the date the unpaid amount became due until the date that it is paid in full.
c) If the Customer fails to pay for any goods or services supplied by the Company when due, then by notice to the Customer the Company may declare any amounts actually or contingently owing by the Customer to the Company to be immediately due and payable.
d) Where payment is to be made by cash the amount owing is due and payable immediately.
e) The Company shall be entitled before delivery or continuing delivery, to stipulate that sufficient security for the fulfilment of the payment obligations is provided or payment is made in advance by the Customer.
f) The Company reserves the right to vary the terms of payment and total value of credit allowed at any given time and to require payment in cash in full prior to delivery should the credit worthiness of the Customer at any time become in the Company’s opinion unsatisfactory.
7. Credit Card Payments
a) If the Customer pays its outstanding account by a credit card, at the time the transaction is processed the Company reserves the right to charge the Customer an amount that the company determines (acting reasonably) to be equal to the merchant service fee or any similar fee payable by the Company to its transaction acquirer in connection with the transaction.
b) The Company may add any amount payable by the Customer under paragraph 7(a) to the sale price of the relevant goods or services supplied or to be supplied by the Company to the Customer.
a) To the extent that a party makes a taxable supply in connection with these Trading Terms, the consideration payable by a party under these Trading Terms represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed.
b) Subject to clause 8(c), if a party makes a taxable supply pursuant to these Trading Terms for a consideration which, under clause 8(a), represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
c) A party’s obligation to make payment under clause 8(b) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
9. Default Arrangements & Enforcement Expenses:
a) If the Customer fails to pay any amounts when due, then in addition to any other amount payable under these Trading Terms, the Customer must pay to the Company upon demand any costs incurred in connection with enforcement of any of the Company’s rights in connection with the supply of goods on these Trading Terms including without limitation:
i) Any legal costs (on a solicitor and own client basis) incurred by the Company;
ii) Any mercantile agents fees incurred by the Company in recovering or attempting to recover any amount payable by the Customer under these Trading Terms; and
iii) Any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made or which should have been made by the Customer.
b) If the Customer commits any default whether under these Trading Terms or any other contract made between the Company and the Customer, the Company will be entitled to withhold further deliveries or cancel the contract without prejudice to any rights to recover any debt or damages arising prior to the date of default.
c) Failure by the Company to insist upon strict performance of any condition set out in these Trading Terms shall not be deemed a waiver thereof or of any enforcement rights that the Company has under these Trading Terms or at law.
10. Exclusions of Warranties and Limitations of Liability:
a) The Company acknowledges that the Australian Consumer Law and similar legislation provides:
i) Certain rights for Consumers that cannot be excluded; and
ii) in relation to the supply of Goods, that in some circumstances the Customer may be a Consumer.
b) Subject to paragraph (c), the Company excludes any and all conditions, warranties, terms and consumer guarantees implied by statute, general law or custom (including without limitation the Australian Consumer Law) applicable to any supply of Goods.
c) The Consumer Guarantees apply to any supply of Goods where the Customer is a Consumer, and the liability of the Company in connection with the Consumer Guarantees is not limited except as stated in paragraph (d).
d) If the Customer is a Consumer in relation to the supply of Goods, and those goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company in connection with the Consumer Guarantees is limited to one of the following (as selected by the Company):
i) The replacement of the Goods or the supply of equivalent Goods;
ii) The repair of the Goods;
iii) The payment of the cost of replacing the Goods or of acquiring Goods equivalent to the Goods; or
iv) The payment of the cost of having the Goods repaired, except where it is not Fair and Reasonable to limit liability in this way.
e) The Company:
i) Excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods, for any indirect damages or losses, or for any special, punitive or exemplary damages that arise from such supply or that may arise as a result of a breach of any of the Company’s obligations (or any obligations of its servants, agents or contractors) under these Trading Terms or at law (save and except for any breaches or acts that involve fraud or dishonesty);
ii) Limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods, to the price payable by the Customer for the Goods; and
iii) Excludes any liability for or in connection a claim that the Goods are not fit for a particular purpose, function or condition, except where the Company has a liability as contemplated by paragraph (a) or (d). It is the Customer’s responsibility at all times to seek expert advice to ensure that the Goods selected are fit for purpose, function or condition.
f) The Customer agrees to notify the Company in writing of any change in ownership or shareholding of the Customer within seven (7) days from the date such change or immediately if an Insolvency Event as specified in clause 15 hereof occurs and the Customer shall indemnify the Company against any loss or damage incurred by it as a result of its failure to notify the Company of such change or Insolvency Event.
g) The Customer in ordering specific Goods from the Company guarantees that in manufacturing such goods the Company will not be liable for any beach or infringement of letters of patent, trade marks, registered designs, copyright or other registered or unregistered intellectual property and the Customer shall indemnify the Company against any loss or damage (whether direct or consequential) incurred by the Company as a result of any such breach or infringement.
11. Claims and Returns
a) A Customer will be responsible for immediate examination of the goods upon arrival at their destination and will be taken to have accepted Goods received by it as being in accordance with its order unless it notifies the Company in writing of its claim, including invoicing shortages, within 7 days from the date of receipt of the Goods.
b) The Company will not accept the return of Goods that are specifically made the Customer’s specifications or ordered for special manufacture.
c) No return of Goods that are allegedly defective or faulty will be accepted by the Company unless either:
i) The Customer is a Consumer in relation to those Goods and is entitled to return them because a Consumer Guarantee applies; or
ii) The Company has given prior written authorisation for the return of the Goods.
d) All Goods for return must be inspected by a representative of the Company prior to the Company accepting any obligation for the return of the Goods.
e) If the Company consents under paragraph (c)(ii) for the return of any Goods, the Customer must:
i) Provide to the Company a written statement setting out the reasons for return of the Goods;
ii) Give the Company details of the original invoice number and the date of delivery of the Goods;
iii) Provide to the Company a copy of the receipt or delivery docket relating to the Goods;
iv) Return the Goods in their original condition as at the time of their sale and/ or packed in their original, undamaged containers and are in new condition including all parts and components;
v) Pay the Company a handling charge equivalent to 25% of the purchase price of the Goods or the manufacture’s surcharge, which ever is the greater.
f) In the event of the Company delivering the Goods to the Customer’s nominated carrier, the Customer shall be responsible for the expense of that carrier, and the Company shall be liable only to replace defective or faulty goods and not Goods damaged in transit.
g) In the event of the Company agreeing to accept a return of Goods, these shall be returned to the Company at the expense of the Customer, and the Company shall credit the Customer’s account with an amount equal to the invoiced sum less the sum payable under clause 11 (e) v) hereof.
12. Modification of labels
The Customer may not, without the Company’s written consent, alter, remove, or obliterate any labels that the Company attaches to the Goods.
13. Retention of Title Arrangements
a) Property in and title to any Goods remains with the Company until the Customer has paid in full (and in cleared funds) all amounts owing by the Customer to the Company in connection with the Goods. Until title in the Goods passes to the Customer, the Customer shall keep the Goods as a bailee for the Company.
b) Despite paragraph 13 a), risk in the Goods passes to the Customer upon delivery.
c) Unless otherwise agreed by the Company, the Customer must identify and store the Goods in a manner that clearly shows that they are the property of the Company.
d) Notwithstanding any of the matters set forth in this paragraph 13, the Customer may sell the Goods to a third party in the ordinary course of their business. The Customer must pay the proceeds of sales to third parties into a separate bank account with separate records being maintained.
e) The Customer must insure the Goods until sold to a third party.
14. Personal Property Securities Act arrangements
a) Acknowledgement of security agreement and security interest
The Customer acknowledges and agrees that:
i) The Trading Terms are a security agreement for the purposes of the PPSA ;
ii) It grants the Company a Security Interest in the Goods and /or in any other property of any kind supplied by the Company to the Customer whether present or after acquired property and in property that represents “Proceeds”, “Accessions”, “Processed”, or “Comingled” goods (all as defined in the PPSA);
iii) The Security Interest secures all amounts owing by the Customer to the Company in connection with the Company’s supply of Goods and services to the Customer under these Trading Terms and
iv) As an additional and separate Security Interest to further secure monies owed to the Company in connection with the Company’s supply of Goods and services to the Customer, the Customer charges to the Company all present and future Accounts, Chattel Paper and all other rights or choses in action (all as defined in the PPSA) which form part of or relate to the Goods or any part of them at any time.
b) Acknowledgement of arrangements for financing statements
The Customer acknowledges and agrees as follows:
i) Financing statements and financing change statements
The Company may at any time register a financing statement (or, if relevant, a financing change statement) on the Register in relation to its security interest in the Goods that may include terms that:
- describe the Company as the “secured party” and the Customer as the “grantor”;
- describe the Goods supplied by the Company to the Customer from time to time pursuant to these Trading Terms as collateral in the class of ”other goods” (or in such other class as the Company may reasonably determine is applicable to the Goods);
- specifies that the security interest that the Company holds in the collateral is a PMSI in accordance with item 7 of the table in section 153(1) of the PPSA to the extent that it secures payment of the amounts owing in connection with that collateral; and
- specifies that the security interest affects Proceeds and, in particular, all present and after acquired property that represents Proceeds of the Goods.
ii) Period of registration
The Company may register a financing statement or financing change statement on the PPSA Register for any period that the Company determines (in its discretion).
iii) Payment of fees and costs
Upon request made by the Company, the Customer must pay to the Company all fees, charges and expenses that the Company may reasonably incur in:
- preparing, lodging or registering any financing statement or financing change statement in relation to any security interest that is granted to the Company under the Trading Terms;
- maintaining any such registration; or
- enforcing any security interest granted to the Company under the Trading Terms.
These fees, charges and expenses may be incurred by or with an agent that acts on behalf of the Company.
iv) When registration to be effected
The Company may register its Security Interest on the Register at any time so long as the Company believes on reasonable grounds that it will become a secured party in relation to the Goods including without limitation when the Customer signs or otherwise adopts or accepts these Trading Terms in a manner proposed by the Company. The Customer agrees that these Trading Terms may (in addition to the Customer’s written agreement) be adopted or accepted for the purposes of section 20 of the PPSA by the Customer accepting delivery of Goods from the Company after receiving these Trading Terms.
A security interest in Goods created according to the Trading Terms will attach to the Goods at the time that the Customer obtains possession of them and not at any later time.
vi) Do all things necessary
The Customer must do anything reasonably required by the Company to enable the Company to register on the PPS Register a Security Interest in any Goods supplied to the Customer and to claim such interest as a PMSI, to claim an interest in the Proceeds in accordance with the PPSA and to maintain such registration.
vii) Separate financing statement may be registered if required
If the Company considers that it has or may have a security interest that is not a PMSI in relation to any Goods, it may register a financing statement in respect of that security interest (and that financing statement may be in addition to a financing statement registered by the Company in relation to a PMSI in the same Goods).
c) Confidential Information
i) The Company and the Customer agree that neither party will disclose to an interested person or to any other person, any information of the kind described in section 275 (1) of the PPSA except that the Company may disclose that information to an interested person where section 275(7) of the PPSA applies.
ii) The Customer agrees that it will not authorize the disclosure of any information of the kind described in section 275 (1) of the PPSA.
If the Customer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply of Goods, the Customer agrees that the Company shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitation) the rights contained in section 123 of the PPSA to seize the Goods by any method permitted by law. For these purposes, and without limiting any other rights of the Company under the PPSA as a secured party, the Customer further agrees:
i) upon demand made by the Company, to immediately deliver up the Goods to the Company;
ii) to irrevocably authorise the Company to enter any premises occupied by the Customer in order to search for, retrieve and remove those Goods to which the Company has title and which are the subject of a security interest as provided for by these Trading Terms;
iii) to do all things necessary to immediately facilitate the Company’s access to the Customer’s premises and to assist the Company to locate and identify the Goods;
iv) to authorize the Company to resell the Goods seized and apply the proceeds of sale in payment of any monies that the Customer owes it;
v) that in the event of any inconsistency with the provisions contained in section 123 of the PPSA and the provisions contained in this paragraph (d), the provisions of this paragraph (d) shall prevail.
e) Application of certain further PPSA provisions
To the extent they apply, the following provisions of the PPSA: section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134 (1) (retention of collateral) confer rights on the Company. The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that the Company may do so in any manner it sees fit including (in respect of dealing or disposing) by private or public sale, lease or licence.
f) Contracting out provisions
To the extent that Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest under or in connection with these Trading Terms the following provisions of the PPSA do not apply and for the purposes of section 115 of the PPSA are “contracted out” of this document in respect of all Goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires the Company to give a notice to the grantor); section 96 (retention of accession); section 125 (obligation to dispose of or retain collateral);section 121(4)(enforcement of liquid assets- notice of grantor); section 130 (notice of disposal to the extent it requires the Company to give notice to the Customer );section 129 (2) & (3) (d) (contents of statement of account after disposal); section 132 (4) (statement of account if no disposal);section 135 (notice of retention);section 142 (redemption of collateral);and section 143 (re-instatement of security agreement).
i) PPSA Notices
The Customer agrees that the Company does not need to give the Customer any notice under the PPSA (including without limitation a notice of a verification statement received from the Registrar) unless the notice is required by the PPSA and that requirement cannot be excluded.
ii) Where default
In the event of a default by the Customer in performing of any of its obligations in connection with a supply of Goods under the Trading Terms, the Customer agrees that (as between the parties to the Contract Terms) the Company is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Goods.
15. Certain Goods are not to become fixtures
a) The Customer acknowledges and agrees that it is the intention of the parties that:
i) Where the Goods are or might be characterized as fixtures to land; or
ii) The Goods rest by their own weight on the land
then the following provisions are to apply.
b) That until the Customer has paid for any of the Goods in full, the Goods are taken to be personal property of the Company and not fixtures despite having been connected to another item, appliance, property or otherwise affixed to land.
c) In the event of a default by the Customer under these Trading Terms, that in addition to the enforcement provisions set out in paragraph 13 d), if the Goods can be removed without causing significant damage to the premises, the Customer consents to the Company and any authorized contractor acting on behalf of the Company entering upon the premises of the Customer or any premises where the Goods are located or have been installed for the purposes of disconnecting them from the other item, appliance, or property (as the case may be) and removing and retrieving the Goods.
d) In the event of the Company exercising its rights under sub paragraph c), the Customer:
i) must not make any claim against the Company; and
ii) must indemnify the Company against any claim by any third party (including without limitation the owner of the relevant property), in contract, tort (including negligence) or otherwise arising from or in connection with the exercise of those rights including without limitation for the cost of making good the premises arising from or connected with the removal of the Goods or for any loss or damage (whether direct or indirect) suffered by the Customer or any third party.
16. Insolvency Events, Liens & Share Transfers
a) If the Customer:
i) becomes insolvent or bankrupt;
ii) is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is appointed with respect to the Customer or any of the Customer’s assets;
iii) makes an arrangement or composition with the creditors of the Customer or attempts to make such an arrangement or composition;
iv) is unable to pay their debts as they fall due;
v) fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) for payment of a debt;
vi) ceases business;
vii) has execution levied against any of their assets; or
viii) has a mortgagee Liquidator, Provisional Liquidator, Receiver, Receiver and manager or Administrator enter or seek to enter into possession of any of its assets,
then any monies actually or contingently owing to the Company at that time under any contract formed on these Trading Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).
b) In addition to any lien to which the Company may by Statute or otherwise be entitled, should one or more of the Insolvency Events set out in clause 16 (a) above affect the Customer, the Company shall be entitled to a general lien on all property or goods belonging to the Customer that are in the Company’s possession, (although such goods or some of them may have been paid for), and for the unpaid price of any other Goods sold and delivered to the Customer under any contract made pursuant to these Terms of Trade.
c) In the event of the Customer being a proprietary or private company a transfer of shares totalling more than 50% of the issued share capital of the Customer or of the controlling interest therein must be notified to the Company within 14 days of such transfer occurring.
17. Force Majeure
a) The Company may suspend any or all of its obligations to the Customer that are affected by any act of God, fire, flood, storm, earthquake, strike, lockout, trade dispute, breakdown, theft, crime, delays in shipping, or the inability of the Company to procure necessary materials or articles preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a Force Majeure Event) and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.
b) When a Force Majeure Event ceases to affect the performance of any of the Company’s obligations, the Company must lift any suspension of those obligations that it makes under paragraph a).
Unless otherwise agreed in writing by the Company, the Company accepts no responsibility for the insurance of the Goods or any of the Customer’s property or materials.
19. Intellectual Property
a) Any Intellectual Property that is presently existing or which is developed in the future by or for the Company in connection with the supply of its goods (including the Goods sold to the Customer under these Trading Terms) vests in and is owned by the Company, and the Customer must do all things and sign all documents reasonably required by the Company to give effect to this clause.
b) All tools, gauges, jigs, drawings, blue prints, specifications, check fixtures, screens, photographs, negative and positive films, stencils and similar items which are manufactured, paid for, supplied or used by the Company in connection with any order or enquiry shall remain the property of the Company and shall be treated as confidential by the Customer (and shall not be reproduced, sold, loaned or otherwise disposed of without the prior written consent of the Company). The Company reserves the right to sell to other customers any products made using the same items.
c) All material, including attached or associated design, methodology and drawings that is supplied to the Customer by the Company in good faith and should be considered “Commercial in Confidence”. The information derived from the Company’s knowledge, experience and abilities, is copyrighted material and intellectual property belonging to the Company. It must be used solely for the purposes for which it has been provided to the Customer and its servants and agents. It is not to be used for any other purpose or disclosure, in full or in part, and shall not be disclosed to a third party without the express written permission of the Company.
d) The Customer warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any patent registered design or trade mark in the execution of the Customer’s order and where the Company has followed a design or instruction furnished or given by the Customer, the Customer shall indemnify the Company against all damages, penalties, costs and expenses, to which the Company may become liable through any work required to be done in accordance with those instructions involving an infringement or unauthorised use of patent, trade mark, registered design, copyright or common law rights. It is specifically agreed that the sale and purchase of the Goods does not confer on the Customer any licence or rights under any patents trade marks or copyright which is the property of the Company.
A certificate of the Customer’s liability under any contract or contracts formed on these Trading Terms, signed by an officer of the Company, is prima facie evidence of the Customer’s liability to the Company under these Trading Terms as at the date of the certificate.
a) Either party may terminate the arrangements under these Trading Terms by not less than 30 days notice to the other or immediately by notice to the other party if the other party is subject to an Insolvency Event.
b) Upon termination all amounts actually or contingently owing by the Customer to the Company are immediately due and payable and the Customer shall immediately on demand deliver up to the Company all goods purchased from the Company for which it has not paid.
Time is of the essence for payment of any monies owed by the Customer to the Company pursuant to the provisions specified in these Trading Terms.
a) These Trading Terms are governed by the laws of the State of Victoria.
b) The parties submit to the non-exclusive jurisdiction of the Courts of Victoria in relation to any dispute or claim arising under or in connection with the supply of Goods or otherwise concerning these Trading Terms.
a) Any notice required by or contemplated by these Trading Terms must be in writing in the English language.
b) Any notice by one party to the other shall be sufficiently served if served:
ii) by facsimile transmission to the number specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, with a transmission confirmation receipt marked “OK”;
iii) by e-mail to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, if the e-mail is acknowledged by the recipient; or
iv) by pre-paid post to the party to be served at the registered office of the party or to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, (in which case it is taken to be received 3 days after the date of posting).