Terms And Conditions For The Supply Of Goods

SHEARWELL AUSTRALIA PTY LTD

Terms and conditions for the supply of goods

CONTENTS
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CLAUSE

1. Interpretation ........................................................................................................ 2
2. Basis of contract .................................................................................................. 3
3. Goods ................................................................................................................... 4
4. Delivery ................................................................................................................. 4
5. Quality.................................................................................................................... 5
6. Title and risk.......................................................................................................... 6
7. Price and payment................................................................................................ 8
8. Limitation of liability ............................................................................................. 9
9. Termination .......................................................................................................... 10
10. Force majeure .................................................................................................... 12
11. General .............................................................................................................. 12

The customer's attention is drawn in particular to the provisions of clause 8.

1. Interpretation

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in Victoria, Australia.

Business Hours: the period from 8.00 am to 5.00 pm on any Business Day.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

Consumer Laws means the Australian Consumer Law and corresponding State and Territory laws.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and Services in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Goods: the goods and/or services (or any part of them) set out in the Order.

GST means the Goods and Services Tax payable under a GST Law.

GST Law means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time, and any regulations made pursuant to that Act.

Order: the Customer's order for the Goods refers to a request by the Customer for Goods submitted through any communication method accepted by the Supplier, including email, telephone and online ordering system or as set out [in the Customer's purchase order form OR overleaf OR in the Customer's written acceptance of the Supplier's quotation OR in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be].

Specification: any specification for the Goods, including any related plans and drawings, that is agreed [in writing] by the Customer and the Supplier.

Supplier: Shearwell Australia Pty Ltd ACN 119 129 869.

[Warranty Period: has the meaning given in clause 5.1.]

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its [personal representatives,] successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written excludes fax [but not email].

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification [submitted by the Customer] are complete and accurate. Supplier will confirm acceptance at the time of receiving the Order from the Customer. Upon acceptance of the Order, the Supplier may indicate the expected delivery timeframe.

2.3 [The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that are inconsistent with these Conditions.]

2.4 Any samples, drawings[, descriptive matter] or advertising produced by the Supplier and any [descriptions or] illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation may only be relied upon for the period specified on the quotation, or if not specified for 14 days from the date it is provided.

3. Goods

3.1 The Goods are to be manufactured and customised in accordance with the Customer’s Specification as detailed in the Order.

3.2 [[To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer indemnifies the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other [reasonable] professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.]

3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

4. Delivery

4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note or invoice that shows the date of the dispatch , [ and all relevant Customer and Supplier reference numbers], the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage and usage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered;

4.2 [The Supplier shall deliver the Goods to the location set out in the Order or such other location as the Supplier may agree (Delivery Location) at the time of order. OR

4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods once the goods have left the suppliers premises and any delay that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similardescription and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by external delivery services or by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. In the event of a failed delivery the Supplier’s liability shall be limited to the value of the goods and no consequential losses shall be accepted.

4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel the Order in whole or part.

5. Quality

5.1 Unless otherwise stated the Supplier warrants that on delivery[and for a period of [6] months from the date of delivery (Warranty Period),] the Goods shall:

(a) conform [in all material respects] with [their description OR the Specification]; [and]

(b) be free from material defects in design, material and workmanship[; and]

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing to the Supplier [during the Warranty Period] within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) the Supplier is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the [Supplier's] cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use ormaintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

(d) the defect arose because the Customer altered or repaired such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from [their description OR the Specification] as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.]

5.4 The specific warranty set out in clause 5.1, and the other provisions of this clause 5, do not limit or exclude any of the warranties to which the Customer may be entitled under Consumer Laws, and which cannot be excluded, restricted or modified by contract. To the extent the Supplier is entitled to limit its liability to the Customer under the Customer’s non-excludable rights under Consumer Laws, the Supplier’s liability is limited at the Suppliers option to:

(a) the replacement of the Goods or the supply of equivalent Goods;

(b) the repair of the Goods;

(d) the payment of the cost of having the Goods repaired.

In the case of Goods, to the supply of the Goods again.

5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6. Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods [in respect of which payment has become due]; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1(c) to clause 9.1(e); and

(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as the Supplier’s agent; and

(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.5 At any time before title to the Goods passes to the Customer, the Supplier may:

(a) by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, may enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6.6 The Customer acknowledges that clause 6.2 creates a security interest (Security Interest) (as that term is defined in the Personal Property Securities Act 2009 (Cth) (PPSA)) in the Goods. The Customer will at the Supplier's request promptly execute any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Security Interest is Perfected (as that term is defined in the PPSA) and which will have priority over all other Security Interests in the Goods.

6.1 The Customer agrees that nothing in sections 117(3) or 130(1)(a) of the PPSA will apply to this Contract, a contract which arises from the acceptance of an Order or a security interest which is created or arises under this Contract or any of those contracts.

6.2 The Customer waives any right which the Customer may have to:

(a) receive a notice under section 95 of the PPSA;

(b) receive a notice under sections 118(1)(b)(i), 121(4), 123(2), 134(1) and 135 of the PPSA;

(c) complain of, or seek redress for, any damage, cost or inconvenience caused by us taking apparent possession of Goods under section 126 of the PPSA;

(d) object to our proposal to purchase Goods under section 129(2)(b) of the PPSA;

(e) receive a statement of account under sections 132(3)(d) or 132(4) of the PPSA;

(f) redeem Goods under section 142 of the PPSA or reinstate a security agreement under section 143 of the PPSA; and

(g) receive a notice of verification statement under section 157 of the PPSA.

6.3 The Customer further agrees that where the Supplier has rights in addition to those under Chapter 3 and 4 of the PPSA, those rights will continue to apply.

7. Price and payment

7.1 The price of the Goods shall be the price set out at the time of order, or, if no price is quoted, the price set out in the Supplier's published price list on its website (https://shearwell.com.au/) in force as at the time of the Order.

7.2 The Supplier may, at any time before an Order is accepted, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3 The price of the Goods unless stated otherwise:

(a) are exclusive of GST, which will be added to the price and is payable by the customer; and

(b) exclude the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 The Supplier may invoice the Customer for the Goods at the time of the Order is accepted or at any time thereafter.

7.5 The Customer shall pay each invoice submitted by the Supplier:

(a) within 30 days of the date of the invoice or in accordance with any extended payment terms agreed by the Supplier and confirmed in writing to the Customer; and

(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

7.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 10% a year above the Reserve Bank of Australia’s official cash rate from time to time, or such other interest rate which may be notified to the Customer from time to time.

7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.

8. Limitation of liability

8.1 The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.

8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

8.4 Subject to clause 8.3, the Supplier's total liability to the Customer shall not exceed the price of the Goods the subject of the Contract.

8.5 Subject to clause 8.3, the following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

8.6 This clause 8 shall survive termination of the Contract.

9. Termination

9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and if such breach is not remediable;

(b) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that Customer being notified in writing to do so;

(i) commits an act of bankruptcy or makes an assignment or composition with its creditors;

(ii) becomes liable to be placed in liquidation;

(iii) cannot pay its debts when they fall due, or is deemed not to be able to pay them in accordance with section 95A of the Corporations Act 2001 (Cth); or

(iv) suspends payment to its creditors or ceases or threatens to cease operating or convenes a meeting of its creditors to propose a scheme of arrangement with them;

(v) has a liquidator appointed or its board or shareholders propose or pass a resolution to appoint a liquidator;

(vi) has a receiver, manager or statutory manager appointed;

(vii) has an application for it to be placed in liquidation presented or advertised;

(viii) passes or purports to pass a resolution for it to be placed in liquidation;

(ix) transfers or disposes of a substantial part of its assets for inadequate consideration, or threatens to do so;

(d) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(e) the Customer's financial position deteriorates so far that, in the Supplier’s reasonable opinion, the Customer ‘s ability to give effect to the terms of the Contract is in jeopardy.

9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(c)
to clause 9.1(e), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices (except for Goods that have not been delivered) and interest. In respect of Goods delivered for which there is an outstanding invoice, the Customer must immediately pay upon receipt of the delivery and in respect of Goods delivered but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4weeks OR otherwise agreed by the parties, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.

11. General

11.1 Assignment and other dealings.

(a) Subject to clause 11.1(b), neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the other Party.

(b) The Supplier may assign the Contract to a related company or a successor in business by notice to the Customer..

11.2 [Confidentiality.

(a) Each party undertakes that it shall not at any time during the Contract and for a period of [two] years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2(b).

(b) Each party may disclose the other party's confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.3 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties.

(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5 Waiver.

(a) A waiver of any right or remedy is only effective if given in writing [and shall not be deemed a waiver of any subsequent right or remedy].

(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to
agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by post at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):

Supplier: [email protected]

Customer: invoice address and email address held on account

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by post, at 9.00 am on the fifth Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of the State of Victoria, Australia.

11.9 Jurisdiction. Each party irrevocably agrees that the courts of State of Victoria or any competent Federal court exercising jurisdiction in State of Victoria shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject
matter or formation.

Terms And Conditions For The Supply Of Goods

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