Terms & Conditions

STANDARD TERMS & CONDITIONS OF TRADE

BURKERT AUSTRALIA PTY LTD [ABN 56 001 839 569] trading as BURKERT FLUID CONTROL SYSTEMS

1. Definitions

Unless the context otherwise requires:

1.1 “Seller” shall mean Burkert Australia Pty Ltd ACN 001 839 569 trading as Bürkert Fluid Control Systems and its successors and assigns

1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer who submits an Order

1.3 “Claims” means all claims, suits, proceedings, actions, demands, litigation, judgements, losses, costs (including legal costs and disbursements and any debt collection agency fees), damages, interest, charges, expenses and all other liabilities.

1.4 “Contract” means the relevant contract for the sale of Goods and/or Services between the Seller and the Buyer comprising these Terms and Conditions of Trade and the relevant Order.

1.5 “Date of Despatch” means the date on which the Goods leave the Seller’s Premises to be delivered to the Buyer and includes collection of the Goods by the Buyer (or its duly authorised agent or representative) from the Seller’s Premises.

1.6 “eShop” means the website of the Seller which is www.burkert.com.au, as updated from time to time.

1.7 “Force Majeure Event” means an event beyond the reasonable control of the Seller including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, pandemic or epidemic, war, riot, terrorism, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or subcontractors.

1.8 “Guarantor” means that person, (or persons), or entity who agrees to be liable for the obligations and debts of the Buyer on a principal debtor basis.

1.9 “Goods” shall mean Goods supplied by the Seller to the Buyer pursuant to a Contract (and where the context so permits shall include any supply of Services or Intangibles as hereinafter defined).

1.10 “Intellectual Property Rights” means all copyright, designs, trademarks, trade names, patents, domain names and any other intellectual property rights of any kind (whether or not registered and whether or not capable of registration) subsisting anywhere in the world.

1.11 “Order” means an order submitted by the Buyer to the Seller for the supply of the Goods and/or Services. Unless otherwise specified by the Seller in writing, an Order has no set form and can comprise:

a) the Buyer placing an electronic order on the eShop website by following the procedures therein (including but not limited to clicking ‘I accept’ on these Terms and Conditions of Trade and making the relevant payment if required);
b) an email/emails;
c) order by phone, or a combination of the same.

1.12 “Services” shall mean all services supplied by the Seller to the Buyer pursuant to a Contract and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).

1.13 “Price” shall mean the price of the Goods as stated in the quotation issued by the Seller (or as displayed on the relevant eShop webpage) which shall be paid by the Buyer in accordance with clause 4 of these Terms and Conditions of Trade.

1.14 “Terms and Conditions of Trade” means the terms and conditions contained in this document, as amended from time to time.

1.15 “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

1.16 “Seller’s Premises” means 15 Columbia Way, Norwest Business Park, Norwest NSW 2153.

2. Acceptance

2.1 All Contracts shall be deemed to incorporate these Terms and Conditions of Trade.

2.2 Any quotation issued by the Seller (including any Price displayed on the eShop) is an invitation to treat and shall not constitute an offer by the Seller. The Buyer may use the quotation to submit an Order to the Seller, however, the Order is subject to acceptance by the Seller in writing. The Seller can, with notice to the Buyer, amend or withdraw a quotation at any time prior to an Order submitted by the Buyer being accepted by the Seller. Subject to the foregoing, a quotation is valid for the period specified within it or, if no period is specified, 30 days from the date of the quotation.

2.3 No Contract shall come into existence unless and until the Seller accepts the Order (which may be done in writing via an order confirmation. . The Seller may refuse to accept an Order in its absolute discretion and without needing to give the Buyer a reason for such refusal. Where the Seller exercises its right to refuse to accept an Order, to the fullest extent permitted by law, the Seller shall not have any liability to the Buyer except for refunding any amounts already paid by the Buyer to the Seller in respect of those Orders which are refused by the Seller. The Buyer agrees that it cannot, without the prior written consent of the Seller, unilaterally cancel, amend or revoke an Order once it is accepted by the Seller.

2.4 Where more than one Buyer has entered into a Contract with the Seller, the Buyers shall be jointly and severally liable for payment of the Price and any other monies payable by the Buyers to the Seller pursuant to the Contract.

2.5 Subject to these Terms and Conditions of Trade, the Contract shall constitute the entire agreement between the Seller and the Buyer and the Buyer acknowledges and agrees to the fullest extent permitted by law that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller that is not expressly set out in writing in the Contract.

2.6 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s delivery address, email address, phone number, change of authorized representative or business practice). The Buyer warrants that all information it provides to the Seller is accurate and complete in all respects and will remain accurate at all times.

2.7 Any purported variation to these Terms and Conditions of Trade or a Contract by the Buyer shall have no force or effect unless expressly agreed to in writing by the Seller.

3 Goods

3.1 The Goods are as described on the relevant documentation provided by the Seller to the Buyer.

3.2 The Seller reserves the right to alter any and all of the technical and general specifications of the Goods at any time with prior notification to the Buyer.

4 Price And Payment

4.1 At the Seller’s sole discretion, the Buyer must pay the Price:
a) if the Buyer is not approved for credit, in full at the time the Seller accepts the Order; or
b) if the Buyer is approved for credit, then payment must be made in accordance with the payment terms specified in the relevant invoice; or
c) if no payment terms are specified, then standard payment terms shall be thirty (30) days following the end of the month of the invoice date (EOM + 30 days) and will be subject to clause 13.3.

4.2 At the Seller’s sole discretion a deposit or progress payment in respect of an Order may be required. If a deposit is required by the Seller, the amount of the deposit will be stipulated at the time the Order is submitted (failing which a default amount of 35% of the Price will apply) and shall become immediately due and payable. The Seller may require progress payments to be made by the Buyer at any time including prior to delivery and/or after commissioning of the Goods.

4.3 All times for payment of all amounts by the Buyer under a Contract shall be of the essence and will be as stated on the relevant invoice, quotation or any other Order forms (including the relevant eShop webpage). If no time is stated then payment shall be one (1) day prior to delivery of the Goods or Services.

4.4 Payment will be made by credit card or electronic funds transfer, or by any other payment method as stipulated by the Seller.

4.5 The Price does not include the amount of any applicable GST or other applicable taxes and/or duties, except where such amounts have been expressly included in the Price quoted by the Seller. The amount of any applicable GST and other applicable taxes and/or duties shall be payable by the Buyer to the Seller in addition to the Price and shall be payable on the same terms and conditions that apply to payment of the Price.

5. Delivery Of Goods and Services

5.1 Delivery of the Goods occurs by the Seller delivering the Goods to the Buyer at the Buyer’s delivery address as stated in the Order, or the Goods being collected by or on behalf of the Buyer from the Seller at the Seller’s Premises, or the Seller agreeing to store the Goods on the Seller’s Premises. Where the Seller agrees to store the Goods on the Seller’s Premises, the Buyer acknowledges and agrees that the Buyer may be liable to pay storage fees as reasonably notified to the Buyer. Where the Goods remain stored on the Seller’s Premises in excess of 90 days, the Seller reserves the right to exercise a lien pursuant to clause 16. The Buyer shall make all arrangements necessary to accept timely delivery of the Goods whenever they are delivered by the Seller. If the Buyer does not accept delivery of the Goods when they are delivered by the Seller, then delivery of the Goods shall be deemed to be made to the Buyer at the Seller’s Premises and all risk for the Goods shall pass to the Buyer at the time of delivery at the Seller’s Premises (“Rejected Delivery”). The Seller (acting reasonably) reserves the right to hold the Buyer liable, and the Buyer agrees to be liable, for any costs incurred in respect of a Rejected Delivery.

5.2 If the Buyer (or its authorised representative) is not available to accept delivery of the Goods when they are delivered by the Seller, then the Seller will use its reasonable efforts to re-attempt delivery of the Goods within a reasonable timeframe.

5.3 If the Buyer (or its authorised representative) is not available to accept delivery of the Goods when they are attempted to be delivered by the Seller a second time, the delivery will be deemed a Rejected Delivery and clause 5.1 will apply.

5.4 Except insofar as the Contract expressly provides otherwise, the costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur are excluded from the Price and shall be reimbursed by the Buyer (without any set-off or other withholding) at the same time as the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent and all risk for the Goods shall pass to the Buyer upon delivery of the Goods by the Seller to the carrier.

5.5 The Buyer agrees and acknowledges that the Seller may deliver the Goods in separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions of these Terms and Conditions of Trade. Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of these Terms and Conditions of Trade. To the fullest extent permitted by law, the Seller will not be liable for any failure to deliver, or delay in delivery, of the Goods caused by any carrier or third party delivery contractor engaged by the Seller.

5.6 The Buyer acknowledges and agrees that a delivery date is an estimate only. Whilst the Seller will use its reasonable endeavours to meet a delivery date or, if there is no delivery date, to make delivery within a reasonable time, to the fullest extent permitted by law, the Seller shall not be liable for any loss or damage suffered or incurred whatsoever due to a failure by the Seller to deliver the Goods or Services, (or any of them), within a reasonable time. The Buyer will not be relieved of any obligation to accept or pay for the Goods or Services because of any reasonable delay in delivery or supply of the Goods.

5.7 The Buyer must provide an accurate and complete delivery address for the Goods and or Services to be delivered to. Subject to clause 5.5, if the Buyer wishes to change the delivery date or delivery address it must contact the Seller as soon as practicable and in any event, prior to the Date of Despatch. To the fullest extent permitted by law, the Seller shall not be liable to the Buyer or any other third party for any loss or damage of any kind suffered by the Buyer due to any incorrect or incomplete address details provided by the Buyer.

6 Purchase Money Security Interest/Retention of Title

6.1 The parties agree that, for the purposes of the Personal Property Securities Act 2009 (“PPS Law”):

a) the Contract and all quotations and invoices issued to the Buyer applicable to the Contract constitute a “security agreement” for the purposes of the PPS Law; and
b) by this agreement the Buyer grants to the Seller a security interest in respect of the Goods to secure payment of the Price and all outstanding debts, obligations and outstanding monies to the Seller from time to time (“Security Interest”); and
c) the Seller’s Security Interest in the Goods continues until all debts and obligations of the Buyer are discharged in full.

6.2 Further to the Seller’s Security Interest in the Goods, title to and property in the Goods shall not pass to the Buyer until receipt by the Seller in cleared funds of payment in full of all amounts payable by the Buyer to the Seller in respect of the Goods (including payment of the Price and any GST, taxes and duties, storage fees, delivery and packaging fees, and default interest) in accordance with Clause 4 above. Until such payment has been made, the Buyer shall hold the Goods as bailee for the Seller. To the fullest extent permitted by law, where such payment is not made on or before the due date and the Buyer has not made a legitimate attempt to repay outstanding monies within a reasonable time, the Buyer hereby irrevocably authorises the Seller to enter at any time the place where the Goods are situated and to repossess the Goods, or remove the Goods from any vessel, vehicle, thing or place whether or not they have at any such time before been fixed to any vessel, vehicle, thing of place and for this purpose the Seller is hereby appointed the Buyer’s agent to deal with and dispose of the Goods. To the fullest extent permitted by law, the Buyer agrees to indemnify the Seller and keep the Seller indemnified against all claims incurred by the Seller in removing the Goods.

6.3 The Security Interest granted under this clause:

a) extends to all proceeds of the Goods; and
b) is effective and attaches to the Goods immediately after the Buyer acquires any right or interest in the Goods if the Buyer has not acquired the Goods when the Buyer signs or otherwise adopts or accepts the Contract.

6.4 The Seller may, at the Buyer’s cost, take all steps as the Seller considers reasonable to register, amend or remove the registration of, protect, perfect or record its Security Interest in the Goods or to better secure its position in respect of the Contract under the PPS Law.

6.5 For the purposes of s 115 of the PPS Law, the parties agree that to the fullest extent permitted by law, they have agreed to:

a) contract out of ss 95, 117, 118, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134, 135, 142 and 143 of the PPS Law; and
b) contract out of all matters permitted to be contracted out of pursuant to s 115(7) of the PPS Law.

6.6 To the fullest extent permitted by law, the Buyer hereby waives its rights to receive any notice under s 157 of the PPS Law pursuant to s 157(3)(b) of the PPS Law.

7. Risk

7.1 All risk for the Goods (including the risk of any loss of or damage to or deterioration of the Goods from whatever cause) will pass to the Buyer on the Date of Despatch (subject to the terms of clause 5 of these Terms and Conditions of Trade).

7.2 If any of the Goods are damaged or destroyed prior to title in them passing to the Buyer in accordance with clause 7.1, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods as though the Seller were the named insured on the relevant insurance policy. This applies whether or not the Price has become payable under these Terms and Conditions of Trade. By entering into these Terms and Conditions of Trade, the Buyer agrees to use its best endeavours to co-operate with the relevant insurance company in respect of any such claim and irrevocably authorises the Seller to receive the aforementioned insurance proceeds once obtained from the relevant insurance company.

8 Disclaimer

8.1 To the fullest extent permitted by law, the Buyer acknowledges and agrees that they buy the Goods relying solely upon their own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranties given by the Seller as expressly set out in the Contract or any warranty that cannot be excluded by law which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.

9 Defects / Returns / Exports / Sanctions

9.1 The Buyer shall promptly inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller a reasonable opportunity to inspect the Goods (including determining if any defect amounts to a “major” or a “minor” failure within the meaning provided by the Australian Consumer Law) within a reasonable time following delivery if the Buyer reasonably believes the Goods are defective in any way.

9.2 If the Australian Consumer Law does not apply to the relevant Goods or Services and subject to 11.1, then to the fullest extent permitted by law (for example, where the Goods are not used for domestic or household purposes):

a) the Seller is not liable to the Buyer for any exemplary damages of any kind or for any consequential, special, incidental or other indirect loss or damage of any kind including any loss of data or other equipment or property, economic loss or damage, incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages), or any loss of actual or anticipated profit, interest, revenue, opportunity, anticipated savings or business or damage to goodwill irrespective of whether or not the Seller was made aware of the possibility of such loss; and
b) subject to the foregoing, the Seller’s maximum total liability to the Buyer for breach of its obligations to the Buyer (including due to negligence) are at the option of the Seller limited to, in the case of Goods, repairing, replacing or resupplying the Goods or paying for the cost of repairing, replacing or resupplying the Goods or refunding the amounts paid by the Buyer to the Seller for the Goods and, in the case of Services, re-supplying the Services or paying for the cost of re-supplying the Services or refunding the amounts paid by the Buyer to the Seller for the Services.

9.3 If the Australian Consumer Law does apply to the relevant Goods or Services then:

a) the Seller is only liable to the Buyer for any consequential loss or damage (and not any other special, incidental or other indirect loss or damage or exemplary damages of any kind) to the extent allowed by the Australian Consumer Law;
b) the Seller’s liability to the Buyer for breach of its obligations to the Buyer are at the option of the Seller limited to, in the case of Goods, repairing, replacing or resupplying the Goods or paying for the cost of repairing, replacing or resupplying the Goods or refunding the amounts paid by the Buyer to the Seller for the Goods and, in the case of Services, re-supplying the Services or paying for the cost of re-supplying the Services or refunding the amounts paid by the Buyer to the Seller for the Services;
c) these Terms and Conditions of Trade must be read subject to any terms of the Australian Consumer Law that cannot be modified or excluded; and
d) the following applies:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:
   I. to cancel your Service contract with us; and
   II. to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with the
   Goods. If a failure with the Goods or a Service does not amount to a “major failure” as that term is defined under Australian Consumer Law, you are entitled to 
   have the failure rectified by the Seller within a reasonable time. If this is not done, you are entitled to a refund for the Goods and to cancel the contract for the
   Service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in
   the Goods or Service.

9.4 To the fullest extent permitted by law, the Buyer is not entitled to reject the Goods if the Goods have been damaged, destroyed or lost after despatch due to no fault on the part of the Seller.

9.5 To the fullest extent permitted by law, the Seller will not be liable for any Goods which have not been stored or used in a correct manner by the Buyer.

9.6 The Seller may (in its absolute discretion) accept the Goods returned by the Buyer for credit if reasonably requested by the Buyer but this may incur a minimum handling fee of 25%, (being a minimum of $25) of the value of the returned Goods, plus any freight charges, such costs to be entirely borne by the Buyer.

9.7 To the fullest extent permitted by law and subject to clause 11.1, the Buyer acknowledges and agrees that the Seller shall not refund the Buyer or accept the return of Goods supplied by the Seller without the prior written consent of the Seller.

9.8 To the fullest extent permitted by law, if the Buyer does not collect or accept delivery of the Goods (including any Goods that have been returned to the Seller for repairs) within 3 months after the Seller advises the Buyer in writing that the Goods are available for collection or delivery, then the Buyer hereby irrevocably authorises the Seller to dispose of the Goods by any means and releases the Seller from all liability.

9.9 The Buyer warrants that:

a) the Goods and Services it acquires from the Seller are not for personal, domestic or household use or consumption;
b) the Goods and Services shall be strictly used in accordance with applicable legal, statutory, and regulatory requirements in the country of sale;
c) it shall not knowingly or unknowingly re-export such purchased Goods and Services from the Seller in violation of relevant legal, statutory and
regulatory requirements; and
d) such Goods and Services are not used in connection with, or in relation to, any illegal activities including, without limitation drugs, trafficking, terrorism and/or violence.

9.10 The Buyer must use its best endeavours to mitigate any loss or damage it suffers or incurs arising from any Contract.

9.11 For the avoidance of doubt and to the fullest extent permitted by law, the Seller does not warrant that the Goods are suitable for export or that they will comply with any relevant laws in any country or jurisdiction outside of Australia.

9.12 Buyer acknowledges that Seller is required to comply with applicable export / import laws and regulations relating to the sale, export, import, transfer, assignment, disposal and use of the Products, including any export / import license requirements, in particular the country import laws of the Buyer, European foreign trade and sanctions laws, in particular for products as per Regulation EU 833/2014 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02014R0833-20240224). Buyer agrees as a fundamental obligation that Products will not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any export / import laws and regulations, e.g. circumvention of said laws and regulations. Either Parties’ continuing performance hereunder is conditioned on compliance with such export / import laws and regulations at all times.

9.13 The Buyer confirms that it will not (re-)sell or use the products outside the country of his company registration or export into a country with limitations as per any of the laws mentioned in clause 9.12. Buyer shall not intentionally or in acting with reckless disregard frustrate the purpose of clause 9.12 using any third parties further down the commercial chain, including by possible resellers.

9.14 The Buyer shall inform the Seller and the Parties shall coordinate in case of any problems in applying clauses 9.12 – 9.15, including sharing of necessary information without undue delay.

9.15 Any Buyer’s culpable violation of clauses 9.12, 9.13 or 9.14 shall constitute a material breach of an essential element of this agreement, and the Buyer shall (i) indemnify and hold harmless Seller on first written demand for the full cost of any enforcement penalties and for any other related losses, including Seller’s reasonable legal fees, full cost of any enforcement penalties imposed as a result of Buyer’s breach, (ii) Seller may terminate the contract immediately without prejudice, and (iii) any advance payments received by Seller for Sanctioned Goods not delivered at the time of termination as per 9.15 (ii), shall remain with Seller as non-refundable compensation and be deducted from any damages due as per clause 9.15 (i).

10 Warranty

10.1 Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in any goods manufactured by the Seller becomes apparent and is reported to the Seller (in writing) within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or replace the goods.

10.2 The conditions applicable to the warranty given by Clause 10.1 are:

a) To the fullest extent permitted by law, the warranty granted under clause 10.1 shall not extend to any defect or damage which may be caused wholly or partly by or arise through:
   I. a failure on the part of the Buyer to properly maintain any Goods in accordance with any instructions provided to the Buyer in respect of the Goods: or \a failure    on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
   II. any use of any Goods otherwise than for any application specified on a quote or order form; or
   III. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
   IV. fair wear and tear, any accident or act of God.

10.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. To the fullest extent permitted by law and subject to the Seller’s warranty and other obligations to the Buyer under the Australian Consumer Law, the Seller shall be under no liability whatsoever, except for the express conditions as stipulated in the manufacturers warranty.

10.4 The benefits provided to the Buyer under this warranty are in addition to any other rights and remedies available to the Buyer under the Australian Consumer Law (to the extent they cannot be excluded under these Terms and Conditions of Trade).

11 The Commonwealth Competition and Consumer Act 2010 and State/Territory Fair Trading Acts

11.1 Nothing in these Terms and Conditions of Trade is intended to have the effect of excluding, restricting or modifying any applicable provisions of the Commonwealth Competition and Consumer Act 2010, the Australian Consumer Law, the Fair Trading Acts in each of the States and Territories of Australia or any other applicable laws, except to the extent they can be lawfully excluded, restricted or modified under those Acts and laws where applicable.

12. Intellectual Property 

12.1 All Intellectual Property Rights arising from or relating to the Contract including in respect of all plans, specifications and drawings are the sole property of the Seller and the Buyer obtains no right, title or interest in same except a limited non-exclusive right to use the Goods for the purpose for which they are provided.

12.2 Without limiting clause 12.1, where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller at all times, and shall only be used by the Buyer at the Seller’s sole discretion. All drawings, designs, and quotations for which goods are not subsequently ordered by the Buyer shall remain the property of the Seller and be treated as confidential by the Buyer and not accessed or used in any way. To the fullest extent permitted by law, the Seller shall have no liability in relation to any such drawings, designs or quotation.

12.3 Where any drawings, designs or specifications have been supplied by the Buyer for manufacture, by, or upon the written instructions of the Seller, then the Buyer warrants that the drawings, designs or specification are correct and the use of those drawings, designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the Intellectual Property Rights of any third party and the Buyer shall indemnify the Seller from and against all claims brought by any third party against the Seller in this regard. The Seller shall have the right by written notice to the Buyer to correct any errors or omissions in the drawings, designs or specifications made by the Buyer, its servants or agents.

12.4 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any Intellectual Property Rights in the execution of the Buyer’s order and the Buyer shall indemnify the Seller for and against all claims brought by any third party against the Seller in this regard.

13. Default & Consequences Of Default

13.1 If the Buyer defaults in payment of any invoice when due or otherwise defaults under a Contract, the Buyer shall indemnify the Seller from and against all Claims suffered by the Buyer arising from the default.

13.2 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation under a Contract (including those relating to payment), the Seller may suspend or terminate the supply of Goods or Services to the Buyer and any of its other obligations under these Terms and Conditions of Trade. To the fullest extent permitted by law, the Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.

13.3 In addition to any other rights or remedies of the Seller, any overdue monies will incur interest at the rate of 10.00% per annum calculated daily.

13.4 In the event that:

a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; or
d) the Buyer otherwise breaches a term of the Contract and does not remedy the breach within 14 days of a written request from the Seller to do so, then, in addition to and without prejudice to the Seller’s other remedies at law and to the fullest extent permitted by law:
   I. the Seller shall be entitled to terminate the Contract and cancel all or any part of any order of the Buyer which remains unperformed; and
   II. all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.

14. Cancellation

14.1 The Seller may cancel a Contract or cancel delivery of Goods at any time before delivery occurs by giving written notice to the Buyer in which case the Seller will repay any sums paid by the Buyer in advance to the Seller (or any payments progressed towards the Goods) in respect of the relevant Goods or Services. To the fullest extent permitted by law, the Seller will not be liable for any loss or damage suffered or incurred by the Buyer arising from such cancellation.

14.2 The Buyer cannot cancel a Contract except with the prior written consent of the Seller and, if consent is given, the Buyer must comply with any cancellation terms specified by the Seller at the relevant time including any cancellation charges payable.

15. Privacy Act 1988

15.1 The Buyer and the Guarantor/s hereby irrevocably authorise the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.

15.2 The Buyer and the Guarantor/s agree that the Seller may exchange certain information about the Buyer and the Guarantor/s with those credit providers named in the Application for Credit Account or named in a consumer credit report issued by a reporting agency for the following purposes:

15.3 To assess an application by the Buyer;

a) To notify other credit providers of a default by the Buyer;
b) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and 
c) To assess the credit worthiness of the Buyer and/or the Guarantor/s.

15.4 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988 (Cth)).

15.5 The Buyer agrees that any “personal information” (as that term is defined in the Privacy Act) which is provided by the Buyer and/or Guarantor/s may be used and retained by the Seller for the following purposes and for any other purposes as permitted by the Privacy Act 1988 (Cth) or as may be agreed between the Buyer and Seller or required by law from time to time including the:

a) provision of Goods & Services;
b) marketing of Goods and/or Services by the Seller, its agents or distributors in relation to the Goods and Services;
c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Goods/Services;
d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods and Services.

15.6 The Buyer agrees that the Seller may give, information about the Buyer to a credit reporting agency for the following purposes:

a) to obtain a consumer credit report about the Buyer; and/or
b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.

16. Lien & Stoppage in Transit

16.1 The Buyer irrevocably grants the Seller a contractual lien over the Goods (“Lien”) in respect of the Price for Goods not being received in full by the Seller, or where a payment has been dishonoured by the Buyer, for a period of at least 90 days.

16.2 If the Seller chooses to exercise the Lien, the Seller will issue the Buyer with an exercise of Lien notice as soon as practicable.

16.3 For the purposes of section 73(2) of the PPS Law, the Seller is deemed to be in possession of the relevant Goods from the moment the Seller issues the Buyer with an exercise of Lien notice.

16.4 The Buyer consents to and authorises the sale and/or disposal of the Goods regardless of their nature and/or value including, without limitation, by way of public auction and/or private sale.

16.5 Notwithstanding clause 6.5(a), any notice given under this clause 16 will be taken to be notice for the purposes of section 130 of the PPS Law.

16.6 In addition to the Lien and to the fullest extent permitted by law, the Buyer also irrevocably grants to the Seller the following where the Price for Goods is not received in full by the Seller, or where a payment is dishonoured by the Buyer, for a period of at least 90 days:

a) the right to retain the Goods for the Price while the Seller is in possession of them;
b) a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed;
c) a right of resale; and
d) the foregoing right of disposal, provided that the Lien of the Seller shall continue despite the commencement of proceedings or judgement for the Price having been obtained.

17. General

17.1 Any term that is unenforceable will be severed unless the term is unenforceable because it is declared to be an unfair contract term, in which case it shall, at the Seller’s election, be deemed to be amended to the minimum extent required to prevent it from being an unfair contract term.

17.2 The construction, validity and performance of the Contract is governed by the laws of New South Wales, Australia. Any claim, proceeding or dispute arising from or relating to the Contract is subject to the exclusive jurisdiction of, and will be determined by, the courts of New South Wales, Australia.

17.3 The Buyer shall have no right to set off any amounts owed to it by the Seller against the total amount outstanding from time to time from the Buyer to the Seller.

17.4 The Seller may transfer, assign, license or sub-contract all or any part of its rights or obligations under a Contract without the Buyer’s consent.

17.5 The Buyer cannot assign, transfer, mortgage, charge, sub-contract or otherwise dispose of or deal in its rights or obligations under any Contract without the Seller’s prior written consent. Any such action taken or purported to be taken by the Buyer without the Seller’s prior written consent is void.

17.6 The Seller reserves the right to amend, vary or replace these Terms and Conditions of Trade at any time and from time to time and agrees to promptly notify the Buyer, in which case the Buyer is deemed to be bound by those updated terms and conditions of trade which shall apply to every new Order submitted by the Buyer. For the avoidance of doubt, the new terms and conditions will be updated on eShop and the Seller strongly recommends that each Buyer review the terms and conditions of trade for amendments each time the Buyer visits the eShop and/or prior to placing an Order.

17.7 To the fullest extent permitted by law, the Seller is not liable to the Buyer in respect of any delay or failure to perform the Seller’s obligations under the Contract arising from or relating to a Force Majeure Event. If the Force Majeure Event continues for a period of 30 days or more then the Seller may, without limiting its other rights or remedies, terminate the Contract with the Buyer immediately by written notice to the Buyer.

17.8 If there is any inconsistency between the Terms and Conditions of Trade and an Order, the terms of the Order prevail to the extent of the inconsistency.