1. DEFINITIONS In these terms and conditions, the ‘Company” means Ozdent Pty Limited ACN 109 658 746 and the “Purchaser” means the entity purchasing the goods the subject of these terms and conditions.
These terms and conditions apply to all sales of goods (Goods) by the Company to the Purchaser from time to time.
Each accepted order by the Company is a separate and binding agreement for the supply of the Goods to the Purchaser on these terms and conditions.
The Company may vary these terms and conditions at any time by notice to the Purchaser, so that the varied terms and conditions apply to future orders for Goods accepted by the Company, but not orders already accepted.
Any quotation made by the Company is not to be construed or operate as an offer or obligation to sell. The Company reserves the right to accept or reject all orders it receives in its absolute discretion. Quotations issued by the Company are valid for 30 days.
All prices and price lists may change without notice due to changes in market conditions. The prices payable by the Purchaser are the Company’s prices ruling at the date the goods are dispatched to the Purchaser. The unit price contained in any quotation is based on the quantities of goods referred to in the quotation. If there is any variation in the total quantity of goods ordered from that quoted, the Company reserves the right to amend the unit prices quoted. List prices quoted are ex-warehouse, excluding tax and insurance, as goods shipped on common carriers are at customer’s risk. Unless otherwise expressly stated, all taxes, imposts, duties, freight charges and GST are payable by the Purchaser in addition to the price of the goods.
The Company makes every effort to ensure product availability at time of ordering. However, there may be some occasions when the Company may not be able to completely fulfill your order. The Company will not backorder Goods if the supplier is unable to provide those Goods to the Company.
Unless otherwise agreed to in writing by the Company or otherwise provided on the Company’s invoices or price lists, payment for the Goods and all other costs and expenses payable in accordance with these terms and conditions must be made to the Company within thirty (30) days from date of invoice. If the Purchaser delays or defaults in respect of any payment, the Company reserves the right, in addition to other remedies it may have to charge interest at a rate equivalent to 2% in excess of [such rates as shall be charged from time to time to the Company by its bankers for overdraft accommodation], such interest to be calculated from the date of delivery to the date of full payment by the Purchaser. Any payment by the Purchaser will be credited first against the interest accrued to the date of payment.
Where the Company agrees to a credit arrangement with the Purchaser, the Company reserves the right at any time to suspend or revoke that credit facility or to change credit terms when in the Company’s sole opinion the financial condition of the Purchaser so warrants. The Purchaser agrees that a condition of approval of a credit account with the Company may be a request for the Purchaser to provide personal guarantees from its directors or a banker’s guarantee, or both. The Purchaser undertakes to inform all directors or proprietors listed on the Credit Application Form that items of personal information about them disclosed in the application that are permitted to be kept on a credit information file may be disclosed to a credit reporting agency or debt collecting agency.
8. INFORMATION AND DRAWING
All descriptive specifications, illustrations, drawings, data, dimensions and weights supplied by the Company or otherwise contained in catalogues, price lists or other advertising matter of the Company are approximate only and are intended to be by way of general description of the Goods. Such descriptive specifications do not form part of the contractual description of the Goods unless agreed to in writing by the Company, in which case such they are subject to recognised trade tolerances.
Where the Company has agreed to deliver Goods to the Purchaser’s warehouse and those Goods are lost or damaged as a result of an act, neglect or default of the Company, the Company’s liability to the Purchaser is limited to either the replacement or repair of any Goods lost or damaged. Any claims against the Company for such loss or damage must be made within three (3) days of the date of delivery. The Purchaser indemnifies the Company against all loss and expenses incurred by the Company, including any additional transport and storage charges, as a result of the Purchaser failing to take delivery of Goods as agreed with the Company.
The Purchaser must notify the Company in writing, within seven (7) days of the date of delivery, of any non-compliance with the order (subject to the usual trade tolerances relating to weight, dimension and processing). If the Purchaser fails to give that notice then, to the extent permitted by statute, the Goods shall be deemed to have been accepted by the Purchaser and the Purchaser must pay for the Goods in accordance with the order and these terms and conditions.
Risk in Goods supplied by the Company passes on delivery to the Purchaser or its agent. If the Purchaser fails to take possession of the Goods within seven (7) days of being notified that the Goods are ready for delivery:
(a) risk in those Goods passes to the Purchaser at the end of the seven (7) day period;
(b) the Purchaser must pay for the Goods in accordance with these terms and conditions; and
(c) the Purchaser will indemnify the Company against all loss and expenses incurred by the Company, including any additional transport and storage charges, as a result of such failure.
Notwithstanding clause 11, title to Goods remains with the Company until all monies owing in respect of those Goods, including any amounts payable under clause 11(c), are paid by the Purchaser. Until such payment is received, the Purchaser must hold the Goods as bailee for the Company, subject to the Purchaser’s right to deal with the Goods in the ordinary course of business. If the Goods are sold or consumed in the ordinary course of business, the Purchaser must hold any monies received in respect of those Goods on trust for the benefit of the Company. The Purchaser grants the Company an irrevocable licence to enter at any time, the premises of the Purchaser or any other premises under the Purchaser’s control, for the purposes of repossession of Goods owned by the Company.
(a) To the extent permitted under the Personal Property Securities Act 2009 (Cth) (PPSA), the Company and the Purchaser agree to the provisions of this clause 13.
(b) The Purchaser agrees that these terms and conditions create a security interest in all present and after acquired Goods supplied or to be supplied by the Company to the Purchaser.
(c) The rights of the Company under these terms and conditions are in addition to and not in substitution for the Company’s rights under other law (including the PPSA) and the Company may choose whether to exercise rights under these terms and conditions and/or under such other law, as it sees fit.
(d) In addition to any other form of security interest that these terms and conditions may confer upon the Purchaser, the security interest granted to the Company is a purchase money security interest as and to the extent provided in section 14 of the PPSA.
(e) The Company may register a financing statement under the PPSA to perfect its security interest in any and all Goods supplied to the Purchaser.
(f) The Purchaser must provide all information, execute all documents and do all other things the Company may require to ensure that the Company has a perfected first ranking security interest in the Goods. The Purchaser hereby gives the Company an irrevocable power of attorney to complete and execute any and all such documentation.
(g) The following provisions of the PPSA do not apply and, for the purposes of section 115 are “contracted out” of these terms and conditions, namely:
(i) sections 125 (obligations to dispose of or retain collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase) and 134(1) (retention of collateral) and the parties agree that Valvoline shall have the power to retain, deal with or dispose of any Products seized by it in the manner specified in those sections and in any other manner it deems fit;
(ii) section 130 (notice of disposal);
(iii) section 132(3)(d) (contents of statement of account after disposal);
(iv) section 132(4) (statement of account if no disposal);
(v) section 135 (notice of retention);
(vi) section 142 (redemption of collateral); and
(vii) section 143 (re-instatement of security agreement).
(h) The following provisions of the PPSA:
(i) section 123 (seizing collateral);
(ii) section 126 (apparent possession);
(iii) section 128 (secured party may dispose of collateral);
(iv) section 129 (disposal by purchase); and
(v) section 134(1) (retention of collateral)
confer rights on the Company. The Purchaser agrees that in addition to those rights, the Company shall, if there is default by the Purchaser, 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 these terms and conditions and the Purchaser agrees that the Company may do so in any manner it sees fit.
(i) The Purchaser waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA.
(j) The parties agree that the subject matter referred to in section 275(1) of the PPSA is confidential and each party must not disclose any such information to a third party.
(k) The Purchaser indemnifies the Company in respect of all loss, damage or expense (including legal and other professional fees and disbursements):
(a) incurred by the Company in enforcing or seeking to enforce its rights or alleged rights (whether or not such enforcement action is completed or successful); and
(b) resulting or arising from any breach or failure by the Purchaser to comply with its obligations under this clause 13, the PPSA and any similar legislation.
The Company may terminate any contract for the supply of goods if:
(a) the Purchaser fails to pay any amount owing to the Company within 14 days of the date due for payment;
(b) the Purchaser becomes insolvent;
(c) execution is levied against any of the Purchaser’s goods; or
(d) the Purchaser is placed in liquidation, whether voluntarily or otherwise.
(a) The only conditions and warranties that are binding on the Company in respect of the state, quality or condition of the Goods supplied by it to the Purchaser are those imposed and required to be binding by statute (including the Competition and Consumer Act 2010) To the extent permitted by law, the liability of the Company arising from the breach of such conditions or warranties is, at the Company’s option, limited to the replacement or repair of the Goods supplied to the Purchaser. Otherwise all other conditions and warranties, whether expressed or implied by law in respect of the state, quality or condition of the said Goods which may apart from this clause be binding on the Company are expressly excluded.
(b) Except to the extent provided above the Company will not be liable (including liability in negligence) to any person for any loss or damage, consequential or otherwise, suffered or incurred by that person in relation to the Goods, including without limitation any failure, breakdown, defect or deficiency in the Goods.
Where the Purchaser provides personal information about its personnel or referees to the Company in the course of purchasing Goods from the Company, or applying for a credit account with the Company, the Purchaser undertakes to notify the relevant personnel that:
(a) their details have been provided to the Company;
(b) the purpose of that disclosure is to enable the Company to provide Goods to the Purchaser or to assess and administer a credit account with the Purchaser;
(c) they may request access to that information by writing; and
(d) the Company may disclose that information to its suppliers, agents and other organisations that the Company has arrangements or alliances with in the course of supplying Goods to the Purchaser or for the purpose of promoting the Goods or services of those entities to the Purchaser.
16. LEGAL CONSTRUCTION
These terms and conditions are to be governed and interpreted according to the laws of New South Wales and the Company and the Purchaser consent and submit to the jurisdiction of the Courts of New South Wales.