Terms & Conditions
STANDARD CONDITIONS FOR SALE
These Conditions of Sale shall be subject to the provisions of the Australian Consumer Law and any statutory amendment or re-enactment thereof for the time being in force which the Company is not capable of excluding, restricting or modifying. Unless otherwise inconsistent with the context the word “Australian Consumer Law” shall mean the law set out in Schedule 2 of the Competition and Consumer Act 2010 and any corresponding state or territory legislation, “person” shall include corporation, “Company” shall mean Belle Banne Conveyor Products Pty Ltd and its agents, servants and employees, and any of its subsidiaries as defined in section 9 of the Corporations Act 2001 (if such subsidiary is named as the party making or accepting the order), “goods” means any goods agreed to be supplied to the Purchaser by the Company under these Conditions of Sale, “PPSA” means Personal Property Securities Act 2009 (Cth) (including any amendment or re-enactment thereof), “Purchaser’ shall mean and include the person to whom any quotation is made and shall include any person offering to contract with the Company on these terms and conditions, and “services” means any services to be performed for the Purchaser by the Company under these Conditions of Sale.
The Company agrees to supply the goods and/or perform the services ordered by the Purchaser from time to time in accordance with these Conditions of Sale and these Conditions of Sale are intended to apply to all such orders as an overarching agreement. Any order placed by the Purchaser is deemed to be an order incorporating these Conditions of Sale notwithstanding any inconsistencies which may be introduced in the order itself or any other document of the Purchaser. Any terms and conditions contained in any order or other document of the Purchaser which are not embodied herein are expressly excluded and these Conditions of Sale take precedence.
Acceptance by the Purchaser of these Conditions of Sale (as amended by the Company from time to time) may be by any one of the following ways:
(a) by signing where indicated below and returning a copy of these Conditions of Sale to the Company;
(b) by performing an act that is done with the intention of accepting these Conditions of Sale (including but not limited to continuing to order the goods and/or services); or
(c) by oral acceptance.
Any quotation made by the Company is not an offer to sell the goods or to provide the services and no order given in pursuance of a quotation shall bind the Company until accepted by it in writing or by the commencement of supply of the goods and/or performance of the services. The Company reserves the right at any time to reject or not process any order placed by the Purchaser.
5. DELIVERY AND PERFORMANCE
(a) Any date quoted for delivery of the goods and/or performance of the services is an estimate only and the Company shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver the goods and/or perform the services on or before the quoted date. The Purchaser shall accept and pay for goods and/or services when tendered notwithstanding any failure by the Company to deliver the goods or perform the services by the quoted date. Written advice to the Purchaser that goods are ready for delivery whether in whole or in part shall constitute the delivery of those goods to the Purchaser and the terms of payment shall apply.
(b) Except where the Purchaser has rights or remedies under the Australian Consumer Law which cannot be excluded, the Company shall not be liable to the Purchaser or any other party for any direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery of the goods or performance of the services whether the same is due to the negligence of the Company or any other party, strike or any other industrial action be it of the Company or other party, or any other cause whatsoever.
(c) The Company reserves the right to deliver the goods by instalments. If delivery is made by instalments, the Purchaser shall not be entitled:
(i) to terminate or cancel the order; or
(ii)to any loss or damage howsoever arising for failure of the Company to deliver any instalments on or before the quoted date.
(d) Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the Purchaser’s order.
Any order may only be cancelled, varied or suspended by the Purchaser with the prior written consent of the Company and in the event of such cancellation, variation or suspension, the Purchaser undertakes to reimburse and indemnify the Company for any reasonable costs, expenses or charges incurred by the Company in preparation for and in the execution of an order.
7. QUANTITIES AND QUALITY
(a)All goods are supplied subject to reasonable availability to the Company of suitable materials and components and the Company reserves the right to substitute suitable alternative materials and components where necessary.
(b)Whilst every effort is made to ensure their accuracy, the description, illustrations and materials contained in any catalogue price list, brochures, leaflets or other descriptive matter provided by or on behalf of the Company represent the general nature only of the items described therein and save where the Company has accepted an order of goods and/or services specified as so described or illustrated, shall not form any part of an order or agreement or amount to any representation or warranty in respect of the goods and/or services.
(c)The Purchaser warrants that any goods supplied or services performed by the Company which are based in whole or in part upon designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser shall not infringe any intellectual property rights of third parties and that any such designs, drawings or specifications shall be complete in every respect to enable the Company to supply the goods and/or perform the services in compliance with all requirements of the Purchaser or of any applicable law. The Purchaser shall indemnify and hold harmless the Company against any action, loss, cost, claim or damage that may be brought against or suffered by the Company for any breach of this warranty by the Purchaser.
(d)The Company does not warrant or guarantee and it shall not be a term of any agreement between the Company and the Purchaser that any goods supplied or services performed by the Company which are based upon any designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser will achieve any standard of performance or capacity whatsoever and the Purchaser acknowledges that it does not rely on the skill and the judgment of the Company for the fitness of the goods or services for any purpose of the Purchaser.
8. ACCESS AND ASSISTANCE
(a) In respect of any work done by the Company in relation to goods to be supplied to or services to be performed for the Purchaser at a location other than the Company’s premises, it shall, subject to any written agreement to the contrary, be the duty of the Purchaser to ensure that the conditions under which the work has to be performed, the layout, means of access, accessibility of the different parts of the subject matter being worked upon or handled and other material circumstances shall be suitable for the Company, failing which the Company shall be entitled to charge a reasonable increase in the price of the goods or services having regard to the prevailing circumstances.
(b) Where services are to be performed on the Purchaser’s premises, the Purchaser agrees to provide the Company on a timely basis with such access, utilities and equipment as the Company may reasonably require in order to perform the services. If the Purchaser fails to provide such assistance, the Company will be entitled to delay performance of the Services until such time as the Purchaser has complied with this obligation and increase the price for the Services to reflect any increased costs to the Company.
Failure by the Company to insist upon strict performance of any term of these Conditions of Sale or to enforce its rights under these Conditions of Sale shall not be deemed a waiver thereof or of any rights which the Company may have and shall not, and nor shall any express waiver, be deemed to be a waiver of any subsequent breach of any term or condition.
10. GUARANTEE AND WARRANTY
(a) Except when the Purchaser is a “consumer” for the purposes of the Australian Consumer Law and the conditions, warranties and rights implied by that law cannot be excluded, restricted or modified, all representations, promises, statements, warranties and conditions (whether statutory, express or implied) regarding any goods supplied or services performed by or on behalf of the Company are expressly excluded. No claim can be made by the Purchaser against the Company unless the Purchaser notifies the Company in writing of the facts or matters which form part of any such claim within 14 days of the Purchaser becoming aware of the same. The Company’s liability for any and all loss or damage resulting from any cause whatsoever, including alleged negligence, will be limited (at the Company’s discretion) to, in the case of goods supplied to the Purchaser, the replacement or repair of the goods or the cost of having the goods replaced or repaired or, in the case of services performed for the Purchaser, a refund of the price paid for the services.
(b) Where the Purchaser is a “consumer” under the Australian Consumer Law and the goods or services are subject to guarantees under the Australian Consumer Law that cannot be excluded, restricted or modified the Purchaser may be entitled to a replacement or refund and for compensation for any other reasonably foreseeable loss or damage. The Purchaser may also be entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
11. LIMITATION OF LIABILITY
(a) To the fullest extent permitted by law, the Company will not be liable to the Purchaser in contract, tort, law or otherwise for i) any loss of profit, hire, business contracts, revenues or anticipated savings, financial or economic loss, loss of opportunity; ii) for damage to the Purchaser’s reputation or goodwill; iii) any loss resulting from any claim made by any third party; or iv) any special, indirect or consequential loss or damage of any nature whatsoever, and none of these shall be included in any claim by the Purchaser.
(b) The Company shall not be liable in any circumstances for:
(i) any defects or damage caused in whole or in part by misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation repair or alteration (other than to the extent caused by the Company):
(ii))any transport, installation, removal, labour or other costs;
(iii) goods not manufactured or services not performed by it but the Company will endeavour to pass on to the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such goods and/or services under a warranty given by the manufacturer provided that nothing contained in this sub-paragraph shall limit the rights of the Purchaser to proceed against the Company pursuant to the Australian Consumer Law; or
(iv) technical advice or assistance given or rendered by it to the Purchaser whether or not in connection with the supply of goods or performance of services for or to the Purchaser provided always that the Company has rendered such services with due care and skill and that any materials supplied in connection with those services are reasonably fit for the purpose for which they are supplied.
12. INSOLVENCY & DEFAULT
(a)the Purchaser defaults in any payment due hereunder;
(b)a resolution is passed or proposed or a petition is presented or an application filed for the winding up of the Purchaser;
(c)a liquidator, administrator, receiver, controller or receiver and manager is appointed over the property or any part of the property of the Purchaser;
(d)the purchaser makes or proposes to make any arrangement with its creditors;
(e)the Purchaser becomes insolvent, is wound up or enters into bankruptcy; or
(f)execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not satisfied within seven days,
then the Company may at its option withhold further deliveries of goods, cease performing services or cancel any orders without prejudice to its rights hereunder PROVIDED HOWEVER that the Company may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter to rely upon the happening thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
13. TITLE LIEN
(a) Title to the goods to be delivered will not pass to the Purchaser until payment in full for the goods and all other amounts owing by the Purchaser to the Company (whether under this or any other agreement) has been received by the Company.
(b) Until the date of final payment of all amounts referred to in paragraph (a) above, the Purchaser:
(i) shall store the goods so that they are clearly identified as the property of the Company and will hold the goods as a fiduciary bailee of the Company;
(ii) shall not dispose of the goods except in the ordinary course of the Purchaser’s business or move the goods from the Purchaser’s premises without the Company’s prior written consent;
(iv) must not allow any person other than the Company to have or acquire any security interest in the goods for the purposes of the PPSA;
(v) must insure the goods for their full insurable or replacement value (whichever is higher) with a reputable insurer; and
(vi) must not remove, deface or obliterate any identifying mark or number on any of the goods.
(c) In addition to any lien to which the Company may, by statute or otherwise, be entitled, the Company shall, in the event the Purchaser fails to pay for the goods in full as required under these Conditions of Sale or becomes insolvent, enters into bankruptcy or is wound up, be entitled to:
(i) without notice and without liability to the Purchaser (or any person claiming through the Purchaser), enter any premises where it suspects the goods may be located in order to search for and remove the goods without committing a trespass (even though they may be attached or annexed to other goods or land not the property of the Purchaser) and for this purpose the Purchaser irrevocably licenses the Company to enter such premises and undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Company from and against all loss suffered or incurred by the Company as a result of exercising such rights; and
(ii) a general lien on all property or goods belonging to the Purchaser in its possession (although such goods or some of them have been paid for) for the unpaid price of any other goods sold and delivered to the Purchaser by the Company under this or any other arrangement understanding or contract.
Unless otherwise agreed in writing all goods shall be at the Purchaser’s risk upon delivery to the Purchaser’s premises (or a third party site nominated by the Purchaser) or upon such goods being made available for collection or loading by the Purchaser or the Purchaser’s carrier or agent.
(a)Unless otherwise agreed in writing payment terms are net cash 30 days from the end of the month in which, in the case of goods, the goods are delivered to the Purchaser or the Purchaser’s carrier or agent or, in the case of services, the services are completed by the Company.
(b) If the Company does not receive forwarding instructions sufficient to enable it to despatch the goods within 14 days of notification that they are ready, the Purchaser shall be deemed to have taken delivery of the goods and the terms of payment shall apply from such date.
(c) The Purchaser shall be liable for storage charges payable monthly on demand, storage being at the Purchaser’s risk.
(d) The Company may require the payment of a deposit which, in such circumstances, must be paid by the Purchaser upon submitting the relevant order to the Company unless otherwise agreed between the parties.
(e) The Company may charge the Purchaser on any overdue amounts interest at a rate of the current rate fixed by the Penalty Interest Rates Act (NSW)
(f)If the Company must take steps or action to recover any amount due to it, the Purchaser will be responsible for all costs and disbursements incurred by the Company in recovering the monies due.
(g)The timing of payment is of the essence in all cases.
(a) Unless otherwise expressly agreed in writing, the price of the goods and/or services shall be that price charged by the Company at the date of delivery and/or performance plus the amount which the Company is required to pay on account of any excise, GST or any other taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or services.
(b) Where a price has been quoted, the price of the goods and/or services shall be Company’s quoted price. All prices quoted are valid for the period stated on the quotation or if no period is stated, 30 days or earlier acceptance by Purchaser after which time they may be altered by the Company without giving notice to Purchaser.
(c) Unless otherwise specified, any prices quoted do not include transportation costs. Goods shall be supplied “ex works”.
(d)The prices quoted are based on present day cost of labour and material and will be subject to contract price adjustment at the option of the Company.
If any supply made by the Company under or in connection with these Conditions of Sale is a taxable supply, the Purchaser must pay to the Company, in addition to any amount or consideration payable by the Purchaser in relation to that supply, the amount of any GST payable in respect of the taxable supply at the time the consideration for the supply is payable.
All samples are sent and inspected solely to enable the Purchaser to judge the quality of the bulk and shall not render any sale a sale by sample. All samples are to remain the property of the Company and shall be returned to the Company on request.
19.TOOLING & DIES
All patterns, dies, moulds or other equipment used in the manufacture of the goods or the performance of the services shall remain the property of the Company unless otherwise expressly agreed in writing. The Purchaser shall not permit any third party to use such equipment nor disclose to any third party any technical, dimensional or design details or any other information in respect of such equipment at any time.
(a)Unless a contrary intention appears, words or expressions used in this clause 20 that are defined in the PPSA have the same meaning given to them in the PPSA.
(a)If the Company determines that these Conditions of Sale or the supply of the goods creates a security interest in its favour over any personal property, the Company may apply for any registration, or give any notification, in connection with that security interest and the Purchaser must promptly, upon the Company’s request, do anything to:
(i)provide more effective security over the relevant personal property;
(ii)ensure that any such security interest in favour of the Company is at all time enforceable, perfected and otherwise effective and ranks as a first priority security interest;
(iii)enable the Company to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest; and
(iv)enable the Company to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the PPSA.
(c)Except if section 275(7) of the PPSA applies, each of the parties agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
(d)If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under these Conditions of Sale or the supply of the goods, the Purchaser agrees that the following provisions of the PPSA will not apply:
(i)section 96 (person with an interest in the whole may retain accession);
(ii)section 117 (obligations in land secured by personal property and land);
(iii)section 120 (enforcement of security interest in liquid assets);
(iv)section 121(4) (enforcement of liquid assets – notice to grantor);
(v)section 123 (secured party may seize collateral);
(vi)section 125 (obligation to dispose of or retain collateral);
(vii)section 126 (apparent possession of collateral);
(viii)section 130 (notice of disposal), to the extent that it requires the Company to give notice to the Purchaser;
(ix)section 132(3)(d) (contents of statement of account after disposal);
(x)section 132(4) (statement of account if no disposal);
(xi)section 142 (redemption of collateral); and
(xii)section 143 (reinstatement of security agreement).
(e)Without limiting clause 20(d) above, the Company does not need to give the Purchaser any notice required under the PPS Law unless the requirement for the notice cannot be excluded.
Without prejudice to the generality of any previous exclusion or limitation of liability, the Company shall not be liable for any failure to fulfil any term of any transaction governed by the Conditions of Sale if fulfilment has been delayed, hindered or prevented by any circumstances whatsoever which are not within the Company’s control and if the Company is able to fulfil some but not all of the demand for its goods and/or services the Company may allocate its available supplies and resources amongst its customers in such a manner as the Company in its absolute discretion considers to be fair.
The Purchaser shall:
(a)comply with all laws relating to anti-bribery and anti-corruption and all policies of the Company relating thereto as notified to the Purchaser from time to time and not contravene any such law or policy;
(b)promptly notify the Company if any request or demand for financial or other advantage of any kind is received by the Purchaser in connection with the provision of the Goods or the performance of the Services or if any foreign public official is appointed as an officer or employer of or acquires an interest in the Purchaser;
(c)have and enforce as appropriate its own policies and procedures to ensure compliance with this clause 22; and
(d)ensure that any person for whom the Goods or Services are to be provided complies with this clause 22.
(a)The contract formed between the Company and the Purchaser in connection with these Conditions of Sale is personal to the Purchaser and must not be assigned to a third party without the prior written consent of the Company.
(b)The Company may in its discretion and without notification to the Purchaser sub-contract the whole or any part of the production or delivery of the goods agreed to be sold to the Purchaser.
(c)These Conditions of Sale shall be governed by the laws of the State of Victoria and the Purchaser submits to the non-exclusive jurisdiction of the courts of that state.
(d)If a provision of these Conditions of Sale would, but for this clause, be unenforceable, that provision must be read down to the extent necessary to avoid that result and, if the provision cannot be read down, must be severed without altering the validity and enforceability of the remainder of these Conditions of Sale.
(e)These Conditions of Sale constitute the entire agreement between the parties. Except as expressly stated in these Conditions of Sale, no conditions, understanding or agreement purporting to modify or vary the terms of these Conditions of Sale shall be binding on the Company unless otherwise agreed in writing and signed by the Company.
(e)These Conditions of Sale supersede all previous terms and conditions imposed by the Company and may be altered by the Company on 30 days notice.
1. I/We the undersigned declare that the information provided by me/us in support of this application is true and correct in every particular.
2.I/We agree to be bound solely by your Conditions of Sale as detailed above and I/We further agree that any terms and conditions of purchase that maybe incorporated in any order, acceptance of quotation or any other document, delivered by me/us, shall unless those terms and conditions are agreed to in writing by your duly authorised representative, have no legal effect.
3. I/We agree that any legal costs incurred by you on a solicitor and own client basis in the recovery of any monies due by me/us shall be recoverable in full from me/us.
4. I hereby certify that I am authorised to sign this application on behalf of the applicant.
Sole Trader / Partner _____________________________________________________
Name (PLEASE PRINT) _____________________________________________________
PURCHASE TERMS & CONDITIONS
In these Terms and Conditions:
(a) “ACDC” means the Australian Commercial Disputes Centre.
(b) “Act” means the Corporations Act 2001 (Cth).
(c) “Belle Banne” means [Belle Banne Conveyor Products Pty Ltd – ABN 12 137362 497]
(d) “Belle Banne Tools” means any tooling, dies, gauges, jigs, fixtures, moulds, equipment, patterns and other facilities supplied by Belle Banne or its Related Body Corporate, either directly or indirectly, to Supplier or paid or to be paid for by Belle Banne or its Related Body Corporate. (Please advise whether tooling is an issue for Belle Banne).
(e) “Force Majeure” means an act of God, a strike, a lockout, act of public enemy, civil commotion, war, blockade, riot, state of emergency, lightning, fire, storm, flood, washout, explosion, Government restraint, or any form or Government intervention and any other cause which is not within the control of the party alleging it.
(f) “Goods” means the products and, if any, services, specified in the Purchase Contract.
(g) “GST” and “Tax Invoice” will have the meaning attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(h) “INCOTERMS” means the standard accepted commonly used trade Terms and Conditions utilised in international trade as published by the International Chamber of Commerce and entitled “Incoterms 2000”.
(i) “Insolvency Event” means in respect of Supplier death, liquidation, provisional liquidation, voluntary administration, compromise, arrangement, amalgamation, administration, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, the appointment of a receiver, the inability of Supplier to pay its debts when they fall due, bankruptcy or the filing for bankruptcy under Chapter 11 of the United States Bankruptcy Code or any event that is analogous to the aforementioned events under any Law.
(j) “Intellectual Property Rights” means patents, design rights, copyrights, trademarks and service marks (whether registered or not and applications for any of the foregoing) know-how and rights of a like nature throughout the world.
(k) “Law” means any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future and whether state, federal or otherwise.
(l) “Material Adverse Change” means any change to the circumstances of Belle Banne (beyond the control of Belle Banne) which Belle Banne believes has a material adverse impact on the ability of Belle Banne to observe the Purchase Contract. A Material Adverse Change includes, but is not limited to, the cancellation or variation of an order for products, into which the Goods have been incorporated, by an entity to which Belle Banne supplies the said products.
(m) “Purchase Contract” means the purchase contract issued by Belle Banne and accepted by Supplier stipulating the Goods to be supplied, the agreed price for the Goods and other details relevant to the supply of the Goods. The Purchase Contract includes any document sent by Belle Banne to Supplier stipulating the quantity and timing of the delivery of the Goods. The Purchase Contract is subject to these Terms and Conditions.
(n) “Related Body Corporate” has the same meaning as this term has under the Act.
(o) “Rules” means the rules for Domestic Arbitration prescribed by the ACDC.
(p) “Supplier” means the seller of the Goods specified in the Purchase Contract.
(q) “Technical Materials”” means all plans, designs, drawings, engineering information, data, specifications, reports, accounts and other material of a technical nature.
(r) “Tender” means any document, drawing, specification or design issued by Belle Banne pursuant to which Belle Banne has agreed to purchase the Goods from Supplier as described in the Purchase Contract. This includes, but is not limited to, documents, drawings, specifications or designs of an entity to which Belle Banne supplies products.
(s) “Tender Documents “means the documents applicable to the Tender.
(t) “Terms and Conditions” means these “Terms and Conditions of Purchase Contract”.
(u) The terms “EXW”, “FCA”, “FAS”, “FOB”, “CFR”, “CIF”, “CPT”, “CIP”, “DAF”, “DES”, “DEQ”, “DDU” and “DDP” have the meaning these terms are given in the INCOTERMS.
(a) These Terms and Conditions override any inconsistent terms and conditions in any document or communication used by Supplier in relation to the supply of Goods (including any terms and conditions that may be printed on the underside of or attached to an invoice or delivery docket provided by Supplier) or any industry practice or earlier course of dealing.
(b)If the Purchase Contract bears reference to a Tender the Tender Documents will apply in addition to these Terms and Conditions. Where the terms of the Tender Document and these Terms and Conditions are inconsistent these Terms and Conditions will prevail.
(c)If any INCOTERM is nominated in the Purchase Contract, the terms of INCOTERMS applies except as otherwise provided or as inconsistent to these Terms and Conditions.
If written acceptance of the Purchase Contract is not provided by Supplier to Belle Banne, the commencement of supply of Goods by Supplier will constitute acceptance by Supplier of the terms of the Purchase Contract, including these Terms and Conditions.
(a)The price of the Goods is fixed in accordance with the prices listed on the Purchase Contract and is not subject to increases in price without Belle Banne’s prior approval in writing. Unless an INCOTERM to the contrary is agreed to by the parties and nominated on the Purchase Contract, the price of the Goods includes delivery to the destination stated in the Purchase Contract and the off-loading of the Goods by Supplier at the point of destination.
(b)The Price includes any applicable GST. Where GST is payable either:
(1)Supplier must provide Belle Banne with a Tax Invoice that complies with all requirements in the GST Act; or
(2)Belle Banne may require Supplier to accept a Recipient Created Tax Invoice (as provided for in the GST Act) as created by Belle Banne.
(c)Supplier must submit monthly itemised invoices to Belle Banne in a form approved by Belle Banne. Unless otherwise stated on the face of the Purchase Contract, Belle Banne will have at least 30 days from the end of the month in which the invoice is received in which to pay Supplier the invoiced amount. Belle Banne may withhold any amount that it disputes in good faith until the dispute has been resolved.
(d)No interest is payable on the late payment of any amounts by Belle Banne.
(e) Belle Banne may set-off any amounts payable by Supplier pursuant to clauses 8.3 and 11 against any amounts payable to Supplier.
(a)Time is of the essence and deliveries must be made both in the quantities and at times specified in the Purchase Contract. Delivery should be made to the location nominated in the Purchase Contract or such other place nominated by Belle Banne by providing Supplier at least 12 hours notice of any change of delivery location.
(b) Supplier agrees that the cost of delivery is determined according to the INCOTERM nominated on the Purchase Contract, and if no INCOTERM has been nominated, delivery will be DDP.
(c) If delivery is not made by the date specified in the Purchase Contract, or within a reasonable time if no date is specified, Belle Banne will be entitled to terminate the contract in respect of the Goods undelivered or delivered late and of any Goods already delivered under this contract which cannot be effectively and commercially used by Belle Banne by reason of the non-delivery or late delivery of the first mentioned goods.
(d) Without limiting the generality of clause 13, upon termination according to clause 5(c) Belle Banne is entitled to:
(1)return to Supplier, at Supplier’s risk and expense any Goods detailed in clause 5(c) and to recover from Supplier any money paid by Belle Banne in respect of such Goods, and Goods already delivered but which cannot be effectively and commercially used due to non-delivery or late delivery of other Goods;
(2) recover from Supplier any additional expenditure reasonably incurred by Belle Banne in obtaining other goods in replacement of the goods detailed in clause 5(c) and any other damages and losses incurred by Belle Banne arising from late or non-delivery of Goods or any part thereof.
(e)A notice of shipment must be sent by Supplier to Belle Banne at the time the Goods are shipped, which must state the description of the Goods, the reference number of this Purchase Contract, the name of the vessel, the port of shipment or delivery, shipping route, the quantity loaded, the invoice amount and other particulars from time to time, requested by Belle Banne.
(f)Supplier must ensure that the Goods are suitably packed or otherwise prepared for shipment so as to secure the lowest transportation and insurance rates and in accordance with the carriers’ requirements.
(g)The packing and marking of the Goods must comply with the Law of Australia and any country from which the Goods are to be exported and in accordance with the instructions of Belle Banne.
(h)All documents related to the shipping of the Goods must be provided to Belle Banne at the time that the Goods depart the port of export including, without limitation:
(1) the bills of lading;
(2) certificate of insurance;
(3) packing declaration;
(4) declarations to customs and quarantine authorities;
(5) evidence of payment of all customs duties and other charges; and
(6) certificate of origin of the Goods.
(i)If Supplier considers the Goods cannot be delivered in time in accordance with Belle Banne’s Purchase Contract, Supplier must notify Belle Banne immediately and give to Belle Banne an estimate of the period of delay and details of the steps which Supplier proposes to take to minimise the delay. Supplier must comply with Belle Banne’s reasonable instructions in order to minimise the delay.
6.1 (a) These Terms and Conditions are additional to all warranties, conditions and undertakings express or implied by the Trade Practices Act 1974 (Cth) or any other Law or as set out in the Tender Documents.
(b) Supplier warrants that all Goods meet the description, specification drawings, data or samples and quality standards provided by Supplier or set out in the Purchase Contract or other document issued by Belle Banne or its representatives to Supplier regarding Belle Banne’s requirements for the Goods including, without limitation, the Tender Documents. Any in-progress inspection by Belle Banne’s employees or agents or other representative does not affect this warranty.
(c) Supplier warrants that the Goods are new, of good title, of merchantable quality, made of good materials and workmanship and free from defects, encumbrance, lien or security interest.
(d) Supplier warrants that all Goods are fit for the purpose for which goods of the same kind are commonly supplied and any purpose which Belle Banne or its representatives make known to Supplier, and must be accompanied by any necessary instructions, technical documents, operating and service manuals and any applicable warranties. If a standard of performance is specified Supplier warrants that Goods will be capable of such performance.
(e) The Goods must carry any applicable manufacturer’s warranty which passes on to any buyer or customer from Belle Banne without liability to Belle Banne. Supplier must assign to Belle Banne at the request of Belle Banne the benefit of any warranty or guarantee that Supplier has received from any supplier (whether under contract or by implication or operation of law).
(f) Supplier warrants to Belle Banne that it will provide all information required by Belle Banne to report the export, import or transport of the Goods in a timely and accurate manner to enable Belle Banne to observe its requirements pursuant to any Law.
(g)Supplier warrants to Belle Banne that it holds good title to any Intellectual Property Rights in or associated with the Goods and provides Belle Banne, the successors, assigns, customers and users of Belle Banne’s products (incorporating the Goods) and any Related Body Corporate of Belle Banne a licence to use any Intellectual Property Rights in or associated with the Goods.
6.2 Supplier agrees to defend, protect and completely indemnify (including legal expenses on the requisite hourly basis set by Belle Banne’s lawyers) Belle Banne, its successor, assigns, customers and the users of Belle Banne’s products (incorporating the Goods) and any Related Body Corporate of Belle Banne from and against any claim arising by reason of the use of the Goods, including all claims for actual or alleged infringement of any Intellectual Property Rights.
6.3 Without limiting the effect of clause 8.1, Supplier agrees to indemnify and keep indemnified Belle Banne against all and any liability arising from the breach of any warranty provided pursuant to clause 6.1.
7. Inspection and return
(a)All Goods are received subject to inspection within a reasonable time after delivery or before delivery at Belle Banne’s discretion irrespective of the date of payment. Signed delivery dockets do not mean acceptance by Belle Banne of the Goods delivered but only the number of packages or cartons delivered.
(b)Belle Banne may reject any Goods or parts thereof that are not in accordance with the Purchase Contract or these Terms and Conditions. Notice of rejection will be provided to Supplier in writing by Belle Banne and must specify the reasons for rejection. Belle Banne is entitled to return the rejected Goods to Supplier at Supplier’s expense and risk.
(c)In all cases of rejection Belle Banne will be entitled to require Supplier to replace the rejected Goods with Goods which are acceptable to Belle Banne or request repayment of any money paid to Supplier in respect of the rejected Goods or may terminate this contract.
(d) Without limiting the generality of clause 13, upon termination according to this clause:
(1)Belle Banne is entitled to return to Supplier at Supplier’s risk and expense any Goods previously delivered to Belle Banne which cannot be effectively and commercially used by Belle Banne by reason of not having the rejected Goods and to recover from Supplier any moneys paid by Belle Banne in respect of such Goods; and
(2)Supplier is liable for any costs, loss or damage suffered or incurred by Belle Banne in relation to Goods that are rejected including the cost of replacement goods.
8. Defective goods
8.1Should any Goods fail to conform to the warranties contain in clause 6, Belle Banne will notify Supplier and Supplier must, if requested by Belle Banne, indemnify Belle for any incidental and consequential damages cause by such non-conforming Goods, including but not limited to, costs, expenses and losses incurred by Belle Banne:
(a) in inspecting, sorting, repairing or replacing such nonconforming goods;
(b) resulting from production interruptions;
(c) conducting recall campaigns or other corrective services actions regardless of whether such campaigns are conducted by Belle Banne or an entity that Belle Banne supplies to and regardless of whether the recall campaign relates to the Goods or a product in which the Goods have been incorporated; and
(d) claims for personal injury (including death) or property damage cause by such non-conforming Goods.
8.2 If Supplier becomes aware of any matter which may affect the Goods or Belle Banne’s use of the Goods, Supplier must notify Belle Banne’s in writing immediately of the matter giving full details of all relevant information. This includes anything which may affect the composition, characteristics or Belle Banne’s use of the Goods, the health, hygiene or safety of any person and Suppliers’, Belle Banne’s or the Good’s compliance with any Law, standard or code of practice.
8.3 Belle Banne may set-off the amounts owing under clause 8.1 against any amounts otherwise payable by Belle Banne to Supplier.
9. Tooling to remain Belle Banne’s property
(a) The Belle Banne Tools remain Belle Banne’s property whether during or after the termination of this Purchase Contract.
(b) Supplier must keep the Belle Banne Tools in good condition and when necessary repair the Belle Banne Tools at its own expense.
(c) Supplier agrees that it will not use any Belle Banne Tools for any purpose other than to supply Goods to Belle Banne and will return and deliver up the Belle Banne Tools following the expiry or termination of this Purchase Contract.
(d) Without limiting the generality of Clause 16,, Belle Banne retains all Intellectual Property Rights in Belle Banne Tools.
10. Changes, Cancellation and Variations
(a) Belle Banne may at any time direct Supplier in writing to change the Goods or any aspect of the supply of the Goods. Supplier’s obligation to supply the Goods following such a change will be subject to the parties agreeing upon the applicable prices, rates or charges acting reasonably and with reference to the prices, rates and charges set out in the Purchase Contract.
(b) Belle Banne may cancel or vary the Purchase Contract (in whole or part) at any time in response to a legitimate business need of Belle Banne including, without limitation, a Material Adverse Change. Belle Banne must give Supplier written notice of such cancellation or variation and must pay Supplier for all Goods delivered up to the date of cancellation or variation. Unless otherwise agreed, Belle Banne must also purchase Goods which have actually been produced by Supplier but not delivered by Supplier and work in progress and other materials produced or acquired by Supplier to manufacture the Goods but only to the extent to which such items cannot be used by Supplier producing goods for itself. Save as expressly set out in this clause, Belle Banne will have no liability to Supplier for cancelling or varying the Purchase contract.
11. Deduction & Set-Off
Belle Banne may deduct or set-off against any amount payable to Supplier any amount payable by Supplier to Belle Banne, including but not limited to any amount due by Supplier for Goods rejected by Belle Banne or for warranty claims made by Belle Banne or by its customers that relate to the Goods.
12. Notification of certain events
Supplier must promptly notify Belle Banne in writing if any of the following events occur or is likely to occur to Supplier:
(a) a change in trade name, or place of business;
(b) change in the ownership or control of Supplier;
(c) the sale or transfer of all or any part of Supplier’s business;
(d) the acquisition by any competitor of Belle Banne of any interest of any kind in the ownership of Supplier;
(e) an Insolvency Event concerning Supplier or a Related Body Corporate; and
(f) any other matter or thing which may affect Supplier’s ability or capacity to supply the Goods to Belle Banne.
(a)In addition to termination rights set out elsewhere in these Terms and Conditions Belle Banne may terminate this Purchase Contact by written notice to Supplier if:
(1) Supplier is in default of any of its obligations set out in the Purchase Contract (including these Terms and Conditions) that is not capable of remedy, or if capable of remedy is not remedied within 30 days of written notice by Belle Banne of such default;
(2) Supplier breaches any warranties Supplier has provided under these Terms and Conditions;
(3) an event in clause 12, has occurred in relation to Supplier other than a change of trade name or place of business;
(4) an Insolvency Event has occurred in relation to a Related Body Corporate of the Supplier; or
(5) a Material Adverse Change has occurred in relation to Belle Banne.
(b) Upon termination under this clause 13:
(1) Belle Banne will have the right to withhold any payment for any Goods not yet delivered by Supplier;
(2) Supplier will be liable to Belle Banne for any incidental or consequential losses incurred by Belle Banne as a result of Supplier’s default under these Terms and Conditions; and
(3) Supplier must return the Belle Banne Tools and grant to Belle Banne an irrevocable licence to enter Supplier’s premises for the purpose of taking possession of the Belle Banne Tools.
(c) Supplier does not have any claim whatsoever at law or equity against Belle Banne if Belle Banne cancels an order under this clause.
14. Property and risk
(a) Property and risk in the Goods will pass according to the INCOTERM elected under the Purchase Contract.
(b) Where no INCOTERM is elected under the Purchase Contract property and risk in the Goods will pass to Belle Banne upon Belle Banne taking delivery of the Goods and the Goods having been inspected and accepted by an authorised representative of Belle Banne. Where Goods are delivered in instalments the property and risk in the Goods pass to Belle Banne upon delivery of that instalment. The passing of property and risk in the Goods will be without prejudice to any right of rejection which Belle Banne is entitled under these conditions.
(c)If Belle Banne pays for Goods before they are accepted, that does not constitute acceptance of the Goods.
Supplier must maintain at its sole expense insurance with reputable and financially responsible insurance companies, which adequately covers Supplier’s liability against Belle Banne and third parties for any incidental and consequential loss or damage arising out of or incidental to any recall campaign pursuant to defective Goods or Goods suspected of being defective. Belle Banne is entitled to require certain insurance coverages and amounts be taken out by Supplier. Belle Banne may request to see, and Supplier will be required to produce within 48 hours, evidence that this clause has been complied with.
16. Intellectual Property
(a) Belle Banne retains the Intellectual Property Rights in any Technical Materials provided to Supplier under the Purchase Contract.
(b) In return for the payment of the purchase price, the Supplier assigns to Belle Banne all Intellectual Property Rights in any Technical Material created by the Supplier or on the Supplier’s behalf for the purpose of the Purchase contract other than any pre-existing Intellectual Property Rights of the Supplier.
Unless otherwise required by Law, Supplier must keep confidential the terms of the Purchase Contract (including but not limited to prices), these Terms and Conditions and all confidential information it receives from Belle Banne or which relates to the Goods or Belle Banne’s business, Intellectual Property Rights or other products. Supplier must not make any public announcements or disclosure in relation to the Goods, these Terms and Conditions or its relationship with Belle Banne without Belle Banne’s prior written consent. The obligations of this clause continue to apply after the fulfilment of any part of the Purchase Contract or termination or cancellation of the Purchase Contract.
18. Force Majeure
(a) Any delay or failure by either party to perform its obligation will be excused if, and to the extent that, it is cause by Force Majeure, provided notice of such delay or failure (including the anticipated duration of the delay or failure) is given by the affected party to the other party as soon as possible after the Force Majeure (but in no event more than 3 days thereafter).
(b) During the period of such delay or failure to perform by Supplier, Belle Banne may, at its option, purchase Goods from other sources and reduces its scheduled purchases from Supplier by such quantities, without liability to Belle Banne, or have Supplier provide the Goods from other sources in quantities and at times requested by Belle Banne, and at the price set out on the Purchase Contract.
(c) In addition, Supplier, at its expense must take such actions as are necessary to ensure the supply of Goods to Belle Banne for a period of at least 30 days during any anticipated labour disruption or resulting from the expiration of Supplier’s labour agreements or contracts. If requested by Belle Banne, Supplier must, within 10 days, provide adequate assurances that the delay will not exceed 30 days. If the delay lasts more than 30 days or Supplier does not provide adequate assurance that the delay will cease within 30 days, Belle Banne may immediately terminate this contract without liability.
19. Limit of liability
(a) The maximum liability of Belle Banne to Supplier as a result of a breach of any of these Terms and Conditions by Belle Banne will be limited to the amount of liquidated damages nominated on the Purchase Contract. This amount represents a genuine estimate of the maximum amount of damages Supplier will suffer in the event of default by Belle Banne.
(b) Should an amount of liquidated damages not be nominated on the Purchase Contract the maximum liability of Belle Banne for breach of the Purchase Contract or these Terms and Conditions will be the total price of Goods ordered under the Purchase Contract.
(c) Belle Banne will in no circumstances be liable to the Supplier, whether in contract or tort or any other basis, for any special, incidental, consequential, indirect or exemplary damages.
20. Compliance with Laws
Supplier must comply at all times with all requirements of any Laws of Australia or of the country of origin of the Goods applying to the Goods including, but not limited to, the manufacture, labelling, transportation, importation, exportation, licensing, approval or certification of the Goods and all other Laws from which liability may accrue to Belle Banne from violation and Supplier agrees to defend, protect and completely indemnify (including legal expenses on the requisite hourly basis set by Belle Banne’s lawyers) Belle Banne, its successor and assigns and any Related Body Corporate of Belle Banne from and against any claim arising from any breach of this clause by Supplier.
Any claims that a party has not complied with its requirements under the Purchase Contract or these Terms and Conditions must be brought within a reasonable time.
22. Governing law
This Purchase Contract is governed by the Law of the State of Victoria without giving effect to international principles of the conflict of laws and Supplier and Belle Banne expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods with respect to sales covered by this Purchase Contract. Belle Banne and Supplier submit to the non-exclusive jurisdiction of the Courts of Victoria.
23. Dispute resolution
23.1 In the case of a dispute between the parties, the following process for resolution will be followed:
(a) internal management conference between the parties within 14 days;
(b) mediation within a further 14 days conducted in accordance with Guidelines for Commercial Mediation issued from time to time by the ACDC and in force at the date of the dispute;
(c) if the party making the claim remains dissatisfied after the meeting convened under clause 23.1 ,or at any time during or at the conclusion of any mediation held pursuant to clause 23.2, that party may then institute proceedings against the other party.
23.2 For the purposes of clause 23.1:
(a) the language of the dispute resolution will be English;
(b) the venue of the dispute resolution will be Australia;
(c) each party will bear their own costs and one-half of the costs of any mediation.
(d) each party is entitled to legal representation at all stages; and
(e) the process set out in clause 23.1 will not exclude the rights of the parties to seek urgent interlocutory relief.
23.3 This clause 23 does not constitute an arbitration agreement within the meaning of the Commercial Arbitration Act 1985.
(a) Belle Banne is entitled to assign any rights, benefits or duties under the Purchase Contract to a Related Body Corporate without requiring the consent of Supplier.
(b) Supplier will not assign or delegate its rights or obligations under the Purchase Contract without the prior written consent of Belle Banne. For these purposes any change to the directors or shareholders of Supplier from the date of this Purchase Contract will require the prior written consent of Belle Banne.
25. Rights are cumulative
The rights of Belle Banne under these Terms and Conditions are cumulative and additional to any other rights Belle Banne may have at Law or in equity.
If any term or condition or part of these Terms and Conditions is illegal, unenforceable or invalid, those Terms and Conditions or part of the Terms and Conditions are to be treated as removed from these Terms and Conditions, but the rest of these Terms and Conditions are not affected.
Belle Banne will not be deemed to have waived any of its rights or remedies under these Terms and Conditions or at Law by allowing any time or indulgence or by not exercising any right or remedy arising out of any default by Supplier.
28. Variation and replacement
(a) No variation of the Purchase Contract will be of any force unless it is in writing and signed by both parties.
(b) Belle Banne may at any time replace or amend these Terms and Conditions, such replacement to be effective from the date specified by Belle Banne in its notice to Supplier advising of the replacement or amendment.