Adrad Terms & Conditions of Sale & Service (Q90POL002)
These are the Terms and Conditions upon which Adrad Pty Ltd (ACN 008 062 502) and Natra Pty Ltd (ACN 004 399 188) (“Company”) sells and quotes for the supply of Goods or Services to another party “The Buyer”.
1.1 “Conditions” means the terms and conditions of sale and service set out in this document and any special conditions agreed in writing by the Company.
1.2 “Goods” means goods or services provided by the Company.
1.3 “Confidential Information” means any information of the Company which is confidential or secret and which pertains to the dealings, transactions, finances or affairs of the Company or the Buyers or clients of the Company and which information is not in the public domain other than as a result of a breach by another party of its obligations of confidentiality under these terms and includes the Intellectual Property.
1.4 “Intellectual Property” includes all know-how, business methods, systems, procedures, databases, drawings, plans, processes, formulae, artwork, designs, logos, technology and records owned by the Company and all patents, copyright, designs, trade marks (whether or not registered), business and Company names, domain names, Confidential Information and trade secrets owned by the Company.
1.5 “Terms and Conditions of Sales and Service” means this document.
1.6 “Trading Account Payment Terms” means Terms and Conditions combined with terms written in the Buyers “Application for Trading Account” document including any amendments made by the Company.
2 PRICE OF THE GOODS
2.1 The “price of the Goods” shall be the Company’s quoted price, or where no price has been quoted, that price that is listed in the Company’s published price list, current at the date of dispatch of any order. All prices quoted are valid for 14 days only, or upon earlier acceptance by the Buyer, after which time the company may alter them.
2.2 The Company reserves the right to change prices without prior notice.
3 TERMS OF PAYMENT
3.1 Subject to any special terms agreed to in writing between the Buyer and the Company, the Company shall be entitled to invoice the Buyer for the price of the Goods at any time after the Company receives confirmation of requirement from the Buyer.
3.2 If the Buyer and the Company have agreed to establish a trading account for the Buyer, then the account must be paid within the time period specified by the Company.
3.3 If the Buyer is in breach of their trading account terms, the Company reserves the right to charge interest on any amounts outstanding at a rate of 18% per annum.
3.4 The Company reserves the right to recover from the Buyer all costs and charges and expenses however incurred in collecting payment of any overdue amount.
3.5 The Company reserves the right to charge a processing fee on credit card and debit card payments (currently 1.3%). The rate charged will be subject to change without notice.
4 TITLE TO GOODS
4.1 The legal and equitable title to and property of the Goods will not pass until the Buyer has paid all monies owed to the Company on any account whatsoever. Payment shall not be taken to occur until all cheques tendered in discharge of the sums owing to the Company have been presented and cleared in full.
4.2 The Company reserves the right to enter upon any premises for the purpose of repossessing the Goods and without prejudice to any other rights of recovery available.
4.3 Until the Buyer has paid all monies owed to the Company on any account whatsoever, the relationship of the Buyer to the Company shall be fiduciary in respect of the Goods and accordingly.
4.3.1 The Buyer shall store the Goods in such a way that they can be recognised as property of the Company.
5 DELIVERY OF GOODS
5.1 Any delivery times advised by the Company to the Buyer are estimates only, and the Company shall not be liable to the Buyer or any other parties for late delivery or non-delivery.
5.2 No delay in delivery or dispatch of the Goods shall relieve the Buyer of its obligations to accept or pay for the Goods.
5.3 The Company reserves the right to deliver by portion and delivery by portion shall not entitle the Buyer to repudiate the Contract.
5.4 Delivery will be taken to have occurred when the Goods are off-loaded at the Buyer’s premises or (where Goods are collected from the Company) upon collection by the Buyer or his agent.
6 CANCELLATION & RETURNS
6.1 No order may be cancelled by the Buyer except with the consent in writing of the Company and on the condition that the Buyer will indemnify the Company against any losses resulting from such cancellation.
6.2 The following Goods cannot be returned for credit:
(i) Goods made to order or to the Buyer’s specifications;
(ii) Goods received more than 21 calendar days after date of initial delivery;
(iii) Goods not in saleable condition
6.3 If it is agreed that the Goods are to be returned:
6.3.1 The Buyer must obtain from the Company authorisation to return Goods before returning the Goods.
6.3.2 The Company reserves the right to charge a handling and restocking fee of up to 15% of the invoiced value of the Goods or $25.00 (excl. GST) whichever is greater on all Goods returned for credit. If the Goods are being returned under Warranty then no restocking fee will apply.
6.3.3 The Company will agree to waive the handling and restocking fee if the Goods are returned to a Company branch within the grace period specified below (from the date of initial Goods delivery):
Local Buyers grace period = 7 calendar days
Regional Buyers grace period = 14 calendar days
6.3.4 The Company reserves the right to charge a repackaging fee of $25.00 (excl. GST) per carton and $90.00 (excl. GST) per crate used to return the Goods to saleable condition. If the Goods are being returned under Warranty then no repackaging fee will apply.
7 INTELLECTUAL PROPERTY
The Buyer agrees:
7.1 not to cause or permit or assist or allow others to cause or permit anything which may damage or endanger the Intellectual Property or other property of the Company or the Company’s title to it;
7.2 to notify the Company of any suspected infringement of the Intellectual Property or other property of the Company;
7.3 to take such reasonable action as the Company may direct at the expense of the Company in relation to such infringement;
7.4 to affix such notices to the Goods or its packaging or advertising associated with the Goods as the Company may direct;
7.5 to compensate the Company for any use by the Buyer of the Intellectual Property or other property otherwise than in accordance with these terms;
7.6 to indemnify the Company against any liability incurred to third parties for any use of the Intellectual Property otherwise than in accordance with these terms;
7.7 not to tamper with any markings or name plates or other indication of the source of origin of the Goods which may be placed on the Goods or on the packaging of the Goods;
7.8 not to register or use any name or mark similar to or capable of being confused with the trade name or any name mark or designation of the Company or the Goods;
7.9 not to use any trade name, other name, logo, device or mark which the Company uses or has used in connection with the Goods or any derivation of any of them in its trading or corporate name or business activities.
8 DEFAULT BY THE BUYER
8.1 If the Buyer makes default in any payment, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, the Company may at its discretion suspend deliveries or cancel any Contract so far as it remains unperformed without prejudice to its rights there under.
8.2 The occurrence of any such default shall in no way prejudice the rights of the Company to recover any amount due for goods previously supplied to the Buyer.
9 FORCE MAJEURE
9.1 In the event that the Company is prevented from carrying out its obligations under a contract for sale as a result of any cause beyond its control, such as but not limited to Acts of God, War, Strikes, Lock-outs, Flood and Failure of Third Parties to deliver goods, the Buyer shall be relieved of its obligations and liabilities under such contract for sale for as long as such fulfilment is prevented.
10.1 This document supersedes all previous terms and conditions documents and is subject to review without notice.
10.2 Any contract shall in all respects be construed and operate as an Australian contract, and in conformity with Australian law.
10.3 If any part of these terms and conditions that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of these terms and conditions.
10.4 The Terms and Conditions of Sale are available from the Company in writing upon request and can be found on the website www.adrad.com.au.
11. PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
11.1 Defined terms in this clause have the same meaning as given to them in the PPSA
11.2 The Company and the Buyer acknowledge that these Terms and Conditions constitute a Security agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of The Company over the goods supplied or to be supplied to the Buyer as the Guarantor pursuant to the Terms and Conditions.
11.3 The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of “Other Goods” acquired by the Buyer pursuant to these Terms and Conditions.
11.4 The Company and the Buyer acknowledge that The Company, as the secured party is entitled to register its interest in the Goods supplied or to be supplied to the Buyer as Guarantor under the Terms and Conditions on the PPSA Register as Collateral.
11.5 To the extent permissible at law, the Buyer:
11.5.1 Waives the right to receive notification of or a copy of any Verification statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the, as Guarantor, to The Company.
11.5.2 Agrees to indemnify The Company on demand for all costs and expenses on a solicitor/client basis associated with the
(i) Registration or amendment or discharge of any Financing Statement registered by or on behalf of The Company; and
(ii) Enforcement or attempted enforcement of any Security Interest granted to The Company by the Buyer
11.5.3 Agrees that nothing in sections 130 and 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;
11.5.4 Agrees to waive the right to do any of the following under the PPSA
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) object to the purchase of the Secured party under section 129;
(iv) receive notice of disposal of Collateral under section 130:
(v) receive notice a Statement of Account if there is no disposal under section 130(4);
(vi) receive a Statement of Account under section 132(3) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
(vii) receive notice of retention of Collateral under section 135:
(viii) redeem the Collateral under section 142; and
(ix) reinstate the Security Agreement under section 143.
12. GOVERNING LAW
12.1 These Terms and Conditions of Sale will be governed by the laws applicable in the state of South Australia and both the Company and the Buyer submit to the jurisdiction of the courts of that state and any courts competent to hear appeals from those courts.
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