“Seller” means Osmosis Advertising Pty Ltd ABN 78 088 469 649;
“Buyer” means the purchaser of the goods;
“Goods” means the products and, if any, services specified in the Purchase Order, Credit Application Form or Quote issued by the Seller;
“Intellectual Property Rights” includes rights pertaining to copyright, trade mark, design, patent, semiconductor or circuit layout rights and confidentiality;
“Party” means the either the Seller or the Purchaser as the context dictates;
“Terms and Conditions (T’s & C’s)” mean these terms and conditions which shall form part of any Purchaser Order, Credit Application or Quote issued by the Seller.
1. The Buyer acknowledges that the Seller retains all Intellectual Property Rights associated with the development of the Goods.
2. Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within sixty (60) days after the quotation’s date. The Seller reserves the right to refuse any order based on a quotation within seven (7) days after the receipt of the order.
3. The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within seven (7) days from the date of receipt of Goods by the Buyer.
4. All specifications, mock ups, drawings, and particulars of weights and dimensions submitted by the Seller to the Buyer are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
4.1 The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
4.2 Where specifications, drawings or other particulars are supplied by the Buyer, the Seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
5. Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
6. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
6.1 The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
6.2 If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(a) It is not a repudiation of these T’s & C’s; and
(b) The defective instalment is a severable breach that gives rise only to a claim for compensation with respect to that instalment only.
7. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
7.1 The Seller must provide the Buyer with such assistance as may be necessary to press claims on carriers but only if the Buyer:
(a) notifies the Seller and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
(b) lodges a claim for compensation with the carrier within three (3) days of the date of receipt of the Goods.
8. Except in relation to liability for personal injury (including sickness and death), the Seller shall be under no liability to the Buyer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant these T’s & C’s or in respect of a failure or omission on the part of the Seller to comply with its obligations under these T’s & C’s.
8.1 The Buyer warrants that it has not relied on any representation made by the Seller which has not been stated expressly in these T’s & C’s.
8.2 The Buyer shall at all times indemnify and hold harmless the Seller and its officers, employees and agents (“those indemnified”) from and against any loss suffered by any of those indemnified arising from any proceedings against those indemnified where shuch loss or liability was caused in part or in full by:
(a) A breach by the Buyer of its obligations under these T’s & C’s; or
(b) Any wilful, unlawful or negligent act or omission of the Buyer.
9. In respect of any claim between the parties under or in connection with these T’s & C’s, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to the Seller which would not have been so apportioned but for such laws.
10. Subject to clause 1, any condition or warranty which would otherwise be implied in these T’s & C’s under common law is hereby excluded.
10.1 Subject to clause 9, the liability of the Seller for any breach of any condition or warranty implied by legislation shall be limited, at the option of the Seller, to one or more of the following:
(a) If the breach relates to goods:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of such goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
i. the supplying of the services again; or
ii. the payment of the cost of having the service supplied again.
11. Unless otherwise stated all prices quoted by Seller are net, exclusive of Goods and Services Tax (GST).
11.1 Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made.
11.2 If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.
12. The purchase price in relation to Goods is payable net and payment of the price of the Goods plus GST must be made on or before the fourteenth day after the invoice is issued unless other terms of payment are expressly stated in these conditions in writing.
12.1 If payment is not made within fourteen (14) days of the date of the invoice, the Seller may change interest on the amount outstanding at a rate of 2% per month or part thereof until paid.
13. Whilst the Goods remain the property of the Seller, the Buyer agrees with the Seller that:
(a) The Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
(b) The Buyer cannot claim any lien over the Goods;
(c) The Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller;
13.1 The Seller and the Buyer agree that:
(a) The property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Seller and the Buyer;
(b) The Buyer must not allow any person to have or acquire any security interest in the Goods;
(c) The Buyer must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business;
(d) The Buyer must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
(a) If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller (and have not been claimed or clawed-back by any person standing in the place of or representing the Buyer), the Buyer agrees that:
(b) It holds the proceeds of re-supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received;
(c) It must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
(d) Any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid.
(e) If the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller, the Seller may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so.
(f) Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk.
14. At any time before the Buyer pays for the Goods in full, the Seller has the right to register its interest in the Goods at the Personal Property Securities Register in the manner required by the Personal Property Securities Act 2009 (Cth). The end term of the registration must be 14 (fourteen) days or as otherwise agreed in writing or 7 days if the Buyer is a consumer as defined by section 3 of Schedule 2 of the Consumer and Competition Act 2010 (Cth).
(a) The Buyer must provide the Seller with assistance as may be required for the Seller to register its interest in the Goods;
(b) The costs for registering the interest in the Goods will be shared equally between the parties; and
(c) If the Buyer fails to pay for the Goods before the end term, the Buyer shall pay the whole costs for renewing the registration.
15. If the Buyer is a company, the officer or persons whose signatures appear as signing on behalf of the company jointly and severally guarantee all the obligations of the buyer under the T’s & C’s and associated contractual documentation. This guarantee and indemnity is given by each guarantor as principal and is not discharged or released by any release or variation of the T’s & C’s.
16. The Seller reserves the right to charge for storage if delivery instructions are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
17. The Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
17.1 If the Seller agrees to accept returned Goods from the Buyer, the Buyer must return the Goods to the Seller at the Seller’s place of business.
18. All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order modified as so agreed in writing prevails over all other descriptions including any specification or enquiry of the Buyer.
19. No order may be cancelled except with the Seller’s consent in writing and on terms which will indemnify the Seller against all losses.
20. Without limiting the generality of any other clause in these T’s & C’s, the Seller may terminate these T’s & C’s immediately by notice in writing if-
(a) the Buyer is in breach of any term of these T’s & C’s and such breach is not remedied within thirty (30) days of written notice by the Seller; or
(a) the Buyer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or if the Buyer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or if the Buyer ceases or threatens to cease conducting its business in the normal manner.
20.1 If notice is given to the Buyer pursuant to subclause 22(a), the Seller may, in addition to terminating the T’s & C’s, repossess the Goods if payment is not complete; retain any moneys paid; charge a reasonable sum for work performed in respect of which work or sum has been previously charged and any legal costs; be regarded as discharged from any further obligations under this T’s & C’s; and pursue any additional or alternative remedies provided by law.
21. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Buyer or the Seller, either is unable to perform in whole or in part any obligation under this agreement, that party is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not be liable to the other party to this agreement in respect of such inability.
22. The Seller may, without the consent of the Buyer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this T’s & C’s.
23. If there is any inconsistency between these T’s & C’s and a purchase order issued by the Seller, the conditions stated in the purchase order shall prevail.
24. The benefit of these T’s & C’s shall not be assigned by the Buyer without the Seller’s written consent.
25. No right under these T’s & C’s shall be deemed to be waived except by notice in writing signed by each Party.
26. These T’s & C’s will be governed by and construed according to the law of the State of New South Wales.
27. The parties submit to the non-exclusive jurisdiction of the courts in the New South Wales and their appellate jurisdiction in respect of any proceedings in connection with these T’s & C’s.