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1.1 In these Terms and Conditions the following terms shall have the meanings set out below:
ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Amount Payable means at any time all amounts payable to New Aim, whether or not those amounts have become due for payment under these Terms and Conditions, in connection with the Goods or the Contract, including without limitation any invoiced amounts, interest, fees, costs or expenses.
Contract means the Terms and Conditions and for a Purchase Order, the relevant Purchase Order Acknowledgement.
Customer means the customer specified in the Purchase Order, the person placing the Order or on whose behalf the Order is placed with New Aim.
New Aim means New Aim Pty Ltd ACN 115 804 432 and any related body corporates (within the meaning of section 50 of the Corporations Act 2001 (Cth)) as specified in the Purchase Order.
Goods means any goods, products, services or materials supplied or to be supplied by New Aum at any time and from time to time, including without limitation any goods specified in a Purchase Order, Purchase Order Acknowledgement or invoice.
GST means any goods and services tax imposed on the Supply pursuant to the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
Purchase Order means an order or offer to purchase Goods.
Purchase Order Acknowledgement is defined under clause 2.1(a).
Terms and Conditions means the terms and conditions set out in this documents, as modified or amended in relation to a particular Purchase Order.
- BINDING TERMS AND CONDITIONS
2.1 Purchase Order, Purchase Order Acknowledgement and Terms and Conditions
(a) A Purchase Order or an offer to purchase can be made by the Customer from time to time, however the Purchase Order shall be deemed accepted when the Customer receives an acknowledgement of the Order from New Aim or delivery of the relevant Goods, whichever first occurs (“Purchase Order Acknowledgement”).
(b) The Terms and Conditions apply to every Purchase Order, unless otherwise agreed in writing by New Aim.
(c) The Customer acknowledges that the Terms and Conditions constitute a security agreement and that New Aim may register a financing statement in respect of the security interests provided for under these Terms and Conditions.
(d) By submitting a Purchase Order to the Company, the Customer hereby agrees and acknowledges that it accepts and ratifies the Terms and Condition apply and are being binding on the Customer.
(a) The Contract shall comprise of the following documents, in order of precedence:
(i) Purchase Order and Purchase Order Acknowledgements;
(ii) These Terms and Conditions; and
(iii) Any other document which is attached to, or incorporated by reference in, the Purchase Order or these Terms and Conditions.
(b) The Contract constitutes the entire agreement between New Aim and the Customer with respect to the Purchase Order. Any and all prior negotiations, proposals, previous dealings, correspondence, trade custom and/or trade usage are superseded by and will not affect the interpretation of the Contract.
(c) If at any time in relation to a Purchase Order, the Customer provides, refers to, submits or otherwise uses terms and conditions other than the Terms and Conditions, such terms and conditions will not form part of or be incorporated into the Contract.
2.3 Entire Agreement
(a) The Contract contains the entire agreement between New Aim and the Customer with respect to its subject matter and supersedes all prior communications and negotiations between New Aim and the Customer in this regard, save where such communications expressly form part of the Contract.
(b) A Purchase Order is accepted by the Customer to the exclusion of any terms stated on any of the Customers documents including its terms and conditions, quotations, proposal, offer, acknowledgement, confirmation, invoice or any other written instrument, unless specifically expressly agreed to in writing signed by a duly authorised representative of both parties.
(c) The Customer and/or a person duly authorized to sign for and on behalf of the Customer and whom is capable of binding the Customer to the agreements herein must sign the Terms and Conditions where indicated.
(d) By signing the bottom of these Terms and Conditions, the Customer warrants to New Aim that:
(i) they have read and understood these Terms and Conditions; and
(ii) if and where they deem necessary or required obtained independent legal and/or accounting advice (or at least availed themselves the opportunity to do so).
3.1 Fitness for Purpose
(a) Except as expressly provided to the contrary in the Contract, all representations, warranties, guarantees and implied terms or conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
(b) The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of a Purchase Order, are for a particular purpose or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Purchase Order to assist New Aim in providing guidance as to the type of Goods the Customer is to purchase.
(c) Notwithstanding any other provision contained herein, the Customer agrees that, unless expressly agreed by New Aim in writing, it has made its own enquiries in relation to the suitability of the Goods and does not rely on representations
Terms and Conditions of Supply of Goods Version: July 2014
by New Aim in relation to their suitability for a particular purpose or any steps may need to be taken in relation to their use.
Subject to clause 3.3 New Aim will use its reasonable endeavours to:
(a) supply Goods having the grade of material specified in the Purchase Order and/or Purchase Order Acknowledgment (if applicable); and
(b) ensure that any grade of material as specified in the Purchase Order Acknowledgment will, unless otherwise agreed, be in accordance with applicable Australian Standards and/or as detailed in any current, relevant price schedules, product handbooks or other product literature of New Aim, including manufacturer warranties.
3.3 Standard Grade
Unless otherwise agreed in writing:
(a) all Goods will be supplied and delivered in accordance with New Aim’s standard practice and shall be subject to New Aim’s normal tolerances, limitations and variations of the following: dimension, weight, shape, composition, mechanical properties, structure, quality and service conditions;
(b) any statements made by New Aim as to weight, length, quantity or other characteristics of Goods are approximate and New Aim may supply Goods on an actual or calculated basis (calculated in accordance with applicable Australian standards); and
(c) New Aim’s statements as to weight, length, quantity or other characteristics are final (in the absence of manifest error) and will not be contested by the Customer unless the Customer has given New Aim written notice of any error within 14 days of delivery and a reasonable opportunity to examine and re-test the Goods before they are used or dealt with.
4.1 Purchase Price
(a) Unless otherwise agreed in writing, the purchase price charged for the Goods shall be the prevailing price listed by New Aim as at the date on which the Purchase Order is submitted by the Customer (“Purchase Price”).
(b) New Aim may at liberty vary the Purchase Price of the Goods from time to time, without further notice to the Customer. It is the Customer’s obligation to ensure they are aware of the prevailing price at the time of their Purchase Order.
(a) Unless where otherwise stated or agreed in writing, the Purchase Price shall include GST, if applicable, as well as any identified or new transaction taxes that come into existence after the effective date of the Terms and Conditions.
(b) Where GST is payable on a Purchase Order, the Customer must pay to New Aim an additional amount equal to the GST, on or around the date on which the Purchase Order was submitted.
- PAYMENT TERMS
5.1 Method of Payment
unless where otherwise provided in the Contract, all payments made to New Aim by the Customer in relation to the performance of the Supply must be made in Australian currency.
(a) New Aim shall render an invoice to the Company in relation to the provision of the Supply upon submission of the Customer’s Purchase Order (“Invoice”).
(b) Each Invoice must be in an acceptable form and must contain the following information:
(i) the number of the Purchase Order to which the Invoice relates;
(ii) a brief description of the Supply including description of Goods, quantities, unit prices, GST payable; and
(iii) the costs of delivery and transportation of the Goods to the nominated destination pursuant to the Purchase Order, including the costs of any taxes, customs, charges and/or duty fees on the import or export of the Goods under the laws of the relevant delivery destination.
(c) Subject to the terms of the Contract, the Customer must pay the outstanding balance of the Invoice upon making a Purchase Order and/or within the stipulated payment terms contained therein.
(d) It is acknowledged that due and punctual payment is not of the essence, however where the Invoice relating to the Supply remains outstanding:
(i) New Aim may not provide a Purchase Order Acknowledgement; and
(ii) New Aim will not commence dispatch and delivery of the Goods pursuant to a Purchase Order, until payment is actually received.
5.3 Disputed Invoice
Where there is a dispute of any amount shown on the Invoice or the Customer discovers any errors or exceptions relating to its invoicing of the Supply, the parties agree to cooperate in good faith to resolve the dispute or error.
- DELIVERY, TITLE AND RISK
(a) New Aim will make all reasonable efforts to have the Goods delivered to the Customer or its designated agent as agreed between the parties pursuant to the Purchase Order on or before the estimated delivery date but New Aim shall not be liable for:
(i) any failure to deliver; or
(ii) delay in delivery for any reason; or
(iii) any damage or loss due to unloading or packaging; or except to the extent that such damage was caused by the negligent act or omission of New Aim, including such damage to property caused upon entering premises to deliver the Goods.
(b) The parties acknowledge that any delivery date prescribed under the Purchase Order or Purchase Order Acknowledgement is an estimate of the expected delivery time and in any interpretation is not a guaranteed delivery time.
(c) New Aim (and or its agents) shall provide updates to the Customer with respect to the delivery time, dispatch dates and/or expected arrival dates, if and where reasonably possible to do so.
(d) Any costs incurred by New Aim due to any failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to New Aim.
(e) Except as required by law, New Aim will be under no obligation to accept Goods returned for any reason.
Full unencumbered title to each Good shall pass to New Aim upon the earlier of the Customer making payment in full to New Aim for the Goods.
Risk in the Goods shall remain with the Customer on and from the date of receiving a Purchase Order Acknowledgement.
- PACKAGING, DESPATCH AND TRANSPORT
7.1 Customer Responsible
(a) Unless otherwise agreed in writing between the parties, New Aim shall be responsible for packing and transporting the Goods to the delivery destination set out in Purchase Order, at the cost and expense of the Customer.
(b) Where the Goods are shipped, carried or transport in the course of delivery by the Customer or a third party by road, rail, sea or air (“Shipment”), each Shipment must contain a packing list stating the contents and the Purchase Order number. Where no packing list is included with the Goods, New Aim’s count of the Goods shall be conclusive evidence of the Goods actually shipped.
7.2 Preparation for transport
New Aim must pack and protect all Goods ready for dispatch in accordance with best practice having regard to methods of carriage and handling and to the weather conditions through which the Goods will pass whilst being transported, and, in a manner to secure the lowest transportation cost.
(a) The Customer will inspect and check all Goods received as soon as practicable upon unloading.
(b) No claim by the Customer for shortages of Goods may be made unless such claim is notified to New Aim with in48 hours of such inspection.
(c) New Aim will endeavour to rectify any shortages as soon as practicable after receiving notice but will not be liable for or in respect of such rectification.
- DUTIES AND OBLIGATIONS OF THE CUSTOMER
8.1 Role of the Customer
The parties agree and acknowledge that the Customer may only purchase the Goods for the sole and exclusive purpose of wholesale or retail sale and distribution to a third party.
8.2 Recommended Retail Price
(a) In consideration of the Good markets of the Goods and each of the Customer’s and New Aim’s ability to be competitive in such markets, New Aim have provided each Customer with a list of recommended retail prices (“RRP”) of each Good, indicating the minimum floor price New Aim recommends the Customer to resell the Goods.
(b) The parties agree and acknowledge that the RRP list is a mere recommendation of the resale price of the Goods. Under no interpretation can the provision of the RRP list to each of the Customers be construed as an enforceable undertaking against each Customer to resell the Goods at the RRP list price.
8.3 Positive undertakings
In entering into this Contract and making or submitting Purchase Orders for the Supply of Goods, the Customer undertakes to New Aim that it will:
(a) act as the Customer of the Goods dutifully and in good faith and in the best interests of maintaining the goodwill of the Goods;
(b) act diligently to promote and protect the interests of New Aim concerning the Supply of the Goods and the profile of the Goods generally;
(c) conduct business in a manner that reflects favourably at all times on the Goods;
(d) avoid deceptive, misleading, or unethical practices that are or might be detrimental or disparaging of or to the Goods, members of the public, New Aim and any of its related entities or authorized dealers;
(e) not knowingly make a false or misleading representations with regard to New Aim or the Goods;
(f) refrain from knowingly publishing or employing any misleading or deceptive advertising material;
(g) refrain from knowingly making any false or unauthorized representations, warranties, or guarantees with respect to the specifications, features, or capabilities of the Goods;
(h) comply with any reasonable directives or instructions given by New Aim in relation to any promotional activities concerning the nature, type, quality, characteristics, fitness for purpose, suitability, use and description of the Goods;
(i) communicate promptly to New Aim:
(ii) any third party complaints made to the Customer concerning the Goods;
(iii) any material market intelligence gathered by or known to the Customer concerning the Good, competitors of New Aim, the competing goods or services supplied in the Territory and the economic conditions prevailing in the Territory;
(j) comply with the laws in force in the country of domicile of the Customer relating to marketing and the distribution of the Goods including without limitation, the laws concerning product registration, fair trading, consumer protection, product liability, and product and safety standards;
(k) subject to clause 8.2 comply with the overall pricing objectives of New Aim and not undermine the integrity or otherwise of such pricing objectives by employing either inflated or deflated Product prices;
(l) maintain at its own expense all appropriate forms of insurance cover for the sale and application of the Goods;
(m) promptly remit to New Aim any moneys of New Aim or owing to New Aim and secure any approval, authority or permit from any competent authority for any such remittance. Nothing prevents the Customer from depositing those moneys in any bank account nominated by New Aim (whether in the Territory or in another place); and
(n) do all things necessary and required with respect to the Goods upon the reasonable direction of New Aim from time to time.
8.4 Negative Undertakings
The Customer undertakes to New Aim that it will not:
(a) represent itself as the agent of New Aim for the Supply of the Goods or of any other goods or services (unless New Aim consents to this);
(b) pledge the credit of New Aim for any purpose;
(c) retain any moneys of New Aim except on a trustee or fiduciary basis;
(d) knowingly and intentionally make any false or misleading statement to any supplier or service provider to the Customer or its business about the Goods or the liability of New Aim for the cost of any goods or services supplied to the Customer or its business; and
(e) incur any liability or assume any obligation on behalf of New Aim.
- LIMITATION OF LIABILITY
9.1 Limitation of Liability
(a) New Aim’s liability to the Customer (and any party claiming through the Customer against New Aim) for any claim for loss or damages (including legal expenses) made in connection with the Contract (including the supply of Goods described in the Contract) whether in contract, tort (including negligence), under statute, in equity or otherwise shall be strictly limited as follows (except to the extent that the law prohibits such a limitation):
(i) for any liability arising from Goods not meeting the specification or which are said to be otherwise defective or deficient, New Aim’s liability is limited to the cost of replacement of those Goods as soon as reasonably practicable, or the repair of those Goods or the repayment (or allowance) of the Purchase Price of those Goods (at the option of New Aim);
(ii) for any liability arising from the services forming part of the Goods not meeting the scope
9.2 Consequential Loss
(a) New Aim may hold the Customer liable, to the maximum extent permitted by law, for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods it supplies, where “indirect, special or consequential loss or damage” includes:
(i) any loss of income, profit, production, contract, customers, business opportunity or business;
(ii) any loss of goodwill or reputation;
(iii) any loss or damage resulting from the loss or damage to goods other than the Goods.
9.3 Defective Goods
(a) any claim by the Customer in respect of defective, non-conforming or damaged Goods must be made in writing within 14 days of the delivery of the Goods, unless a longer period is expressly agreed to by New Aim in writing.
(b) Despite any other provision of the Contract, New Aim is not liable, to the maximum extent permitted by law, for:
(i) the cost of removal of Goods not meeting the specification or which are said to be otherwise defective or deficient, whether installed or otherwise;
(ii) the cost of installation of replacements for Goods not meeting the specification or which are said to be otherwise defective or deficient;
(iii) defects or deficiencies in Goods caused by improper installation or maintenance of Goods or related components or normal wear and tear and damage.
The Customer undertakes and agrees to hold in the strictest confidence all confidential information and not to disclose or permit or cause the confidential information to be disclosed to any person other than any of its personnel who require the Confidential Information for the purposes of providing the Supply, unless such information:
(a) becomes generally available to the public other than as a result of the breach of this clause 9; or
(b) is required to be disclosed in order to comply with relevant laws or legally binding order of a court or government agency.
- PPS LAW
unless otherwise defined, capitalised words in this clause 8 have the same meaning as given to them in the Personal Properties Securities Act (2009) Cth (“PPSA”) where applicable.
11.2 Security Agreement
(a) The acceptance of a Purchase Order for the performance of the Supply, constitutes an act giving rise to a Security Agreement under the PPSA, whereby the Customer grants to and for the benefit of New Aim a Security Interest in the due and punctual performance of such Security Agreements to the following extent and nature:
(i) a Security Interest over all the Customer’s present and after-acquired property in which the Customer can be a Grantor of a Security Interest including property in which the Customer has or may have in the future have, rights or the power to transfer rights, proceeds and any retention of title property (“PPSA Personal Property”); and
(ii) a fixed charge over all present and after acquired property of the Customer that is not PPSA Personal Property;
(b) In granting the Security Interest pursuant to clause 11.2(a), the Customer acknowledges and confirms that:
(i) New Aim has given value for the Security Interest in the PPSA Personal Property as Collateral, including by its promises under this Contract;
(ii) nothing in this Contract is intended as an agreement by the Parties that a Security Interest Attaches at a later time than the time specified in section 19(2) of the PPSA; and
(iii) it has not made any other agreement with New Aim to vary the time of Attachment of a Security Interest except in any express written agreement between Parties.
(c) The Customer must upon request by New Aim do anything (including but not limited to obtaining consents or executing a new Security Agreement) for the purposes of ensuring that any Security Interest granted under the Contract shall be enforceable, perfected, maintained and otherwise effective.
11.3 Waiver of Notice
On and from the date of these Terms, the Customer waives its right to receive:
(a) a copy of, or notice of, any Verification Statement confirming Registration of a Financing Statement or a Financing Change Statement relating to any Security Interest under or provided for by this clause; and
(b) a notice of New Aim’s proposal to retain PPSA Personal Property under section 135 of the PPSA.
- FORCE MAJEURE
Neither party shall be liable for delays or defaults due to acts of God, acts of governmental war, fire, flood, strikes, or other causes beyond its control, provided that in any event New Aim may terminate this Contract as to all or any outstanding portion of the Supply.
If the Customer believes reasonably and necessary, the Customer will, may obtain insurance for and in respect of the Goods, including without limitation public liability insurance and professional indemnity insurance. New Aim, at its option, shall be named as an additional insured under all such coverages other than workers’ compensation insurance.
14.1 Customer to indemnify New Aim
The Customer agrees to indemnify and hold harmless New Aim and its Personnel from any costs, expenses, losses, damages, claims, actions or liabilities (“Liabilities”) that New Aim may directly or indirectly suffer, sustain or incur, arising from any one or more the following:
(a) the breach by the Customer of any of the Customer’s obligations, including any warranty, under the Contract;
(b) any negligent act or omission or wilful misconduct by the Customer arising out of the performance of the Contract;
(c) any claim made against New Aim by any third person arising out of or alleged to arise out of the Supply, including claims relating to the use of any Goods by the Customer or third persons; and
(d) all claims, expenses, and judgments based upon any actual or alleged infringement of any patent, trademark, or copyright relating to any Goods unless such claim arises out of non-compliance by the Customer of New Aim’s specifications.
14.2 Continuing Indemnity
Each indemnity in the Contract is a continuing obligation separate and independent from the Customer’s other obligations and survives the termination of the Contract.
- NO FAULT TERMINATION
(a) New Aim may at any time, without cause, terminate the Contract or any part of it by giving the Customer thirty (30) days’ prior written notice of its intention to do so (“Termination Notice”).
(b) Upon receipt of a Termination Notice, the Customer must:
(i) immediately pay any outstanding amounts due and payable to New Aim from time to time;
(ii) return all Confidential Information belonging to New Aim issued to the Customer, including copies of its Contracts; and
(iii) take any necessary action as New Aim may reasonably require.
- CUSTOMER DEFAULT
16.1 Event of Default
An event of default includes:
(a) a breach by the Customer of any term or provision of this Contract;
(b) any voluntary or involuntary administration of the Customer including but not limited to entering into Deed of Company Arrangement or being issued insolvency proceedings by or against the Customer;
(c) the inability of the Customer to meet its obligations as they become due; or
(d) the appointment of a receiver for the Customer by any court of competent jurisdiction.
16.2 Default Notice
If the Customer commits an event of default described in clause 16.1, New Aim may serve a notice of default (“Default Notice”) on the Customer requiring that:
(a) if the breach is capable of being remedied, for such breach to be remedied within fifteen (15) days of the date of the Default Notice; and
(b) if the breach is incapable of being remedied, then state that the Contract is wholly or partly terminated and without limiting its other rights, to cancel and terminate its Contract with the Customer as to any unfitted or unperformed portion thereof, without any liability to the Customer of any kind.
16.3 Rights on Default
New Aim shall be entitled to take such action as it deems necessary and required to cure the default, whereby the cost of such action so taken by New Aim shall be recoverable from the Customer as a debt due to New Aim, including:
(a) treating a Purchase Order Acknowledgement or the whole of the Contract as repudiated and sue for breach of contract; and/or
(b) refuse or cease to supply any Goods to the Customer at all; and/or
(c) claim the return of any Goods in the Customer’s possession where title has not passed to the Customer or exercise any other right or remedy available to it under the Contract, the PPSA or any other applicable law, including to enforce the security interests created by the Contract; and/or
(d) by notice to the Customer declare all monies owing by the Customer to New Aim on any account immediately due and payable (including the Amount Payable).
Except as expressly set out in the Terms and Conditions, a party waives a right under the Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
If any provision of this Contract shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.3 Further Assurances
Each of the Parties will sign, execute, deliver and do and will procure that each of its officers, employees and agents signs, executes, delivers and executes, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this Contract and the rights and obligations of the Parties under it.
No right or interest in this order shall be assigned, nor any obligation delegated by the Customer without New Aim’s prior written permission.
17.5 Jurisdiction and Governing Law
all dealings between New Aim and Customer shall be subject to the State of Victoria in the Commonwealth of Australia and the Customer agrees to submit to the non-exclusive jurisdiction of the Courts of Victoria in the Commonwealth of Australia.
In this Contract, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) a reference to a monetary amount is in Australian Dollars (AUD);
(d) words denoting any gender include all genders;
(e) reference to a person includes any other entity recognised by law and vice versa;
(f) where a word or phrase is defined its other grammatical forms have corresponding meaning;
(g) any reference to any agreement or document includes that agreement or document as amended at any time; and
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding.
17.7 No Joint or Several Liability
If a party is made up of more than one person, or a term is used in this document to refer to more than one party:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally; and
(c) any other reference to that party or term is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.