1.1 Payment for Products is due immediately upon delivery ("the due date”).
1.2 Property and ownership in the Products will not pass to the Purchaser but will remain with Addlon Trading (AT) until payment in full of the Purchase Price of the Products and all other amounts owing to AT by the Purchaser.
1.3 Subject to subclause 3.7 risk in the Products shall pass at the time of delivery and the Purchaser shall insure (and keep insured) the Products. AT is not responsible to the Purchaser for any loss or damage to Products in transit caused by any event of any kind by any person.
1.4 Property in the Products passes to the Purchaser upon full payment of the Purchaser Price of those Products is received by AT from the Purchaser.
1.5 Until property passes to the Purchaser:
a) The Purchaser shall hold the Products as fiduciary Bailee and agent for AT.
b) Unless otherwise notified in writing, the Purchaser is authorised to sell the Products in the ordinary course of business but this authority shall no longer have any Application in the event that any receiver, administrator, liquidator, provisional liquidator, official manager or any one or more thereof shall be appointed in respect of the Purchaser's business or if any mortgagee shall enter into possession of any assets of the Purchaser or the Purchaser shall be or become insolvent.
c) The authority granted to sell the Products in the ordinary course of the Purchaser's business shall be only for sales made for which immediate payment is made to the Purchaser by cash, cheque with cleared funds or credit card.
d) After giving 24 hours’ notice to the Purchaser, AT shall be entitled by its employees and/or agents to enter upon the Purchaser's premises between 9:00am and 5:00pm on all days when those premises would ordinarily be open to the public to inspect the Products, take stock and verify invoices and delivery dockets.
e) The Purchaser will always keep the Products clearly marked with identification as AT goods and ensure that at any time the Products will be stored only at the location of the Purchaser's business notified to AT in this Application and in such a way that it will be practicable for a representative of AT readily to match the goods held against all delivery invoices supplied by AT for stocktaking or removal.
f) Upon request by AT at any time the Purchaser will ensure that all Proceeds will be placed in a separate bank account which will include in the title of that account the following 'proceeds of sale for AT’.
1.6 In addition to the other amounts payable to AT the Purchaser will be liable to pay to AT as and when lawfully demanded any GST that are incurred by AT as a result of making a supply to the Purchaser that is taxable supply under any GST Law.
1.7 If payment for the Products is not made by the Purchaser to AT within one calendar month of the end of the calendar month in which the due date occurs the following provisions shall apply:-
a) The Purchaser shall deliver the Products to AT on demand. In the event that the Purchaser does not comply with a demand within 48 hours of receipt, AT shall be entitled to enter upon the Purchaser's premises by its employees and/or agents at any time and do all things necessary to take possession of the Products. The Purchaser shall be liable to pay to AT on demand all costs of whatsoever nature of and associated with the exercise of AT’s rights under this clause AND the Purchaser grants permission and an irrevocable licence to AT 's servants and agents to enter upon the premises where the Products shall be for the purpose of doing anything necessary to take possession of the Products.
b) The Purchaser will pay interest on all amounts owing to AT from the due date down to the date or dates of payment at the rate of interest referred to in Section 2 of the Penalty Interest Rates Act 1983 of the State of Victoria or at such lesser rate as AT may accept in lieu thereof.
c) The Purchaser will be liable for all costs reasonably incurred in recovery, including all debt collection agency and legal fees on solicitor-own client basis.
1.8 Products supplied by AT to the Purchaser may be resold only to retail customers of the Purchaser at the location of the Purchaser's business notified to AT in this Application and not otherwise.
1.9 In the event that AT has delivered part of the Order, the amount representing the part of the Order delivered shall become due immediately irrespective of the portion of the Order that is yet to be delivered. The Purchaser undertakes that both part Orders shall be treated as separate Orders and payments of both Orders shall be forthcoming from their respective delivery dates.
2.1 If the PPS Law applies or commences to apply to this Trading Account Facility, AT may give notice to the Purchaser requiring the Purchaser to provide information and do all acts necessary to enable the preparation of a Financing Statement to register AT’s Security Interest over the Products and Proceeds subject to this Trading Account Facility (“Notice”).
2.2 Within 7 days of receipt of a Notice issued pursuant to subclause 2.1, the Purchaser agrees:
a) to provide, at AT’s request, all information necessary for AT to prepare and register a Financing Statement over the Products or Proceeds;
b) to do all acts necessary to enable the preparation and registration of the Financing Statement over the Products or Proceeds.
2.3 If the Purchaser holds any Products or Proceeds as Security Interests for the purposes of the PPS Law, the Purchaser agrees to implement, maintain and comply in all material respects with procedures for the perfection of those Security Interests under the PPS Law for AT to obtain the highest ranking priority possible in respect of the Security Interest.
2.4 The Purchaser agrees that AT may require the Purchaser to pay all reasonable costs, including legal costs on a solicitor-client basis, associated with the registration, discharge or amendment of any Financing Statement registered by AT pursuant to this clause 2, regardless of whether or not the change was initiated by the Purchaser.
2.5 The Purchaser authorises AT to search the Register at any time for information about the Purchaser.
3.1 The Purchaser represents to AT that any and all purchases of Products by the Purchaser are for the purpose of re-supply.
3.2 Unless otherwise agreed in writing in advance prices of all Products will be those provided in AT's price list for goods at the date of invoice by AT which may be changed without reference to the Purchaser in light of changed circumstances affecting AT at any time.
3.3 Discount structure for ongoing business, indent and specials will be communicated from time to time as required. Any changes will be communicated in writing.
3.4 Any reference by AT to a retail price shall be a recommended retail price only and the Purchaser will have no obligation to observe any recommended retail price. In determining its own price, the Purchaser should fully account for any indirect tax savings arising out of the Government's tax reform package.
3.5 AT shall in its discretion offer such settlement discount as it shall from time to time determine.
3.6 All payments for goods supplied shall be made by the Purchaser to AT at AT's head office address appearing on the front of this document unless stated otherwise.
3.7 The Purchaser undertakes that the value of Orders for Products shall be not less than $15,000 in any calendar yearly period and at any time the value of Orders during the preceding six months shall be not less than $7,500.
3.8 All Orders by the Purchaser shall be placed in such manner as AT shall from time to time approve. Any Order or purported Order bearing the logo of the Purchaser or made by letter on an official letterhead of the Purchaser shall be taken as conclusive evidence of an intention on the part of the Purchaser to place an Order. The onus of ensuring accuracy of an Order is the Purchaser’s responsibility in case of verbal Orders. An Order will be deemed to have been accepted by AT upon delivery of the Products by AT at the delivery address of the Purchaser provided in this Application or if acceptance has been confirmed in writing by AT.
3.9 AT shall effect delivery to the Purchaser at its address at a charge of $12.50 +GST per consignment. The fee for delivery of any Order under $300 +GST in value will be $20 +GST per consignment. If, with the approval of AT, the Purchaser seeks to nominate a carrier other than the carrier specified by AT, then the risk in the Products shall pass upon delivery of the Products to the nominated carrier. The Purchaser may be required to accept any Order in more than one delivery. Any times given for delivery of Products are approximate and for guidance only. Given different delivery cycles, an Order that relates to different brands or lead times will be processed and despatched as separate Orders.
4.1 AT may in its sole discretion cancel or suspend the Trading Account Facility provided to the Purchaser in any of the following events:
a) The failure of the Purchaser to make payment for the Products within one calendar month of the end of the calendar month in which the due date occurs;
b) If the Purchaser enters into an agreement for the sale or proposed sale of its business;
c) The Purchaser fails to order the minimum quantity of goods specified in subclause 3.7;
d) The Purchaser commits a breach of any of these Terms and Conditions and in the event that such breach is capable of remedy, the Purchaser fails to remedy the breach upon receiving notice from AT specifying the breach and requiring that it be remedied within 7 days of such notice;
e) In the event that the Purchaser, being a company, goes into liquidation (other than for purposes of reconstruction with the consent of AT which consent will not be unreasonably withheld) or makes an assignment for the benefit of or enters into an agreement or composition with its creditors or is unable to pay its debts within the meaning of the Corporations Law or if an Administrator, a Receiver or Receiver and Manager is appointed to its property or if execution of judgements for amounts over the sum of $10,000 is levied against it and not discharged within thirty (30) days or within the terms of any arrangement made with the judgement creditor whichever is the earlier; or
f) The Purchaser is knowingly or recklessly involved either directly or indirectly in the purchase or sale of goods in circumstances in which the production, supply, sale or use of such goods is likely to be effected only with or in connection with an infringement of intellectual property rights owned or held by AT.
4.2 In the event that AT cancels or suspends the Trading Account Facility of the Purchaser, AT shall not be liable for any loss or damage whatsoever which may result directly or indirectly to the Purchaser from such cancellation or suspension.
5.1 The Purchaser may not defer or cancel an Order once made to AT without AT's consent in writing and with any request to effect any Order amendment, deferment or cancellation, the Purchaser must provide AT with one full calendar month notification in advance. The cancellation of Orders remains at the complete discretion of AT.
5.2 Indent Orders may not be cancelled for the first month of delivery.
5.3 The Purchaser cannot defer any Order or part thereof more than once and any deferred Order cannot be cancelled in any circumstances.
5.4 All custom product Orders (i.e. Products made up and designated as “Special Make Up” or "S.M.U." by AT) may not be cancelled by the Purchaser unless:
a) AT agrees in writing and the Purchaser pays AT all costs AT reasonably incurs in relation to the cancelled Order; or
b) if AT is in breach of these Terms and Conditions.
5.5 No Products will be accepted for return without prior consent from AT and must be accompanied by an authorisation number. Where authorisation is provided for return of Products, all such Products must be returned in original packaging in good order and condition accompanied by the original invoice and the authorisation number. All price stickers or other labelling must be removed by the Purchaser or AT will not be required to accept them.AT undertakes to arrange for Products to be collected from the Purchaser for return by AT's authorised carriers. AT will have no responsibility whatsoever for the cost of carriers not authorised in advance by AT.
5.6 Claims will only be considered if received by AT's Customer Service Department within 7 days of delivery. Any claims for faulty Products must be fully documented and referred to either the representative of AT who ordinarily has contact with the Purchaser or AT's claims department at its address provided in this Application. All items will be subject to inspection by AT before credit can be considered and accordingly, acceptance of the items by AT shall not constitute acceptance of credits. For Products which are faulty, it will be necessary to obtain a returns authorisation number. AT reserves the right to apply a restocking fee of up to 10% of the invoiced value of any stock/Products of merchantable quality returned for credit.
5.7 Claims for short deliveries must be raised with AT within 72 hours of delivery. No short delivery claims will be accepted after this time.
5.8 Proof of Delivery (P.O.D) must be requested immediately upon receipt of statement on which the invoice first appears. No P.O.D will be provided for Invoices that are more than 60 days old.
6.1 A notice or other communication required or permitted to be given by a party to another shall be in writing and:-
a) delivered personally;
b) sent by certified mail, postage prepaid; or
c) sent by facsimile transmission.
6.2 A notice or other communication is deemed given if:
a) personally delivered, upon delivery;
b) sent by mail, on actual delivery to the addressee as evidenced by Post Office documentation; or
c) transmitted by facsimile.
a) Any contracts between AT and the Purchaser shall be deemed to have been made in the State of Victoria and the construction validity and performance thereof shall be governed in all respects by the law for the time being in force in that State.
b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria and Courts entitled to hear appeals from those Courts.
8.1 Save as specifically and expressly contemplated in these Terms and Conditions no provision hereof shall be changed, waived or modified without the express written agreement of AT.
8.2 These Terms and Conditions embody the entire agreement of the Purchaser and AT in respect of the ordering, supply and delivery of and payment for Products, and any Order received by AT from the Purchaser shall be deemed to incorporate the Terms and Conditions of this Application set out notwithstanding any purported change to such terms specified by the Purchaser.
8.3 Any waiver or failure to execute any rights by AT shall not be deemed a waiver of any further or other right of AT in respect of the Purchaser or Guarantors of the Purchaser.
AT and the Purchaser agree that:
a) All the provisions of these Terms and Conditions are reasonable in all the circumstances and that each provision is and will be deemed to be severable and independent; and
b) If any provision hereof is found by any Court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected and the invalid, illegal or unenforceable provision shall be severed from this document, it being the intention of the parties that had they known that any such provision would be invalid, illegal or unenforceable in any respect, they would have agreed upon and accepted the remaining Terms and Conditions.
The Purchaser shall notify AT immediately upon any agreement having been entered into in respect of the sale or proposed sale of the Purchaser's business. The Purchaser will notify any prospective purchaser of the Purchaser's business of AT's ownership of AT's Products held by the Purchaser and that any new owner will be required to negotiate a new Trading Account Facility with AT. Upon completion of any sale of the Purchaser's business, the Purchaser will effect payment of all amounts owing to AT at that date and the Trading Account Facility provided by AT in accordance with these Terms and Conditions will cease but without prejudice to any rights of AT or the Purchaser which have arisen in respect of a transaction occurring before the date of such cessation.
The Purchaser irrevocably appoints each of the directors and secretaries of AT at any time and from time to time jointly and severally as its attorney under power in each of the following circumstances:-
a) In the event of default by the Purchaser in the payment of any moneys due and owing by the Purchaser to AT and that default continuing for more than two (2) calendar months after the due date, for the purpose of taking possession of the Products of AT held by the Purchaser, and any costs incurred by AT in connection with such recovery.
b) In the event that the Purchaser has not been paid for Products of AT sold by the Purchaser to third parties, for the purpose of issuing proceedings in the name of the Purchaser against such third parties for recovery of moneys owing to the Purchaser by such third parties, should AT wish to do so.
The Purchaser undertakes to notify AT of any information received by or on behalf of the Purchaser concerning any threatened infringement of intellectual property rights owned or held by AT including without limiting the foregoing any attempt to sell pirated or counterfeit Products to the Purchaser.
The Purchaser may be entitled to statutory rights under the Australian Consumer Law or may have rights under State or Territory legislation which may have application to a contract for the sale of goods made pursuant to these Terms and Conditions and which rights may not lawfully be excluded. AT does not exclude, restrict or modify those statutory rights. In all other respects, in so far as and to the maximum extent that it may lawfully do so, AT excludes any liability, whether in tort (including negligence), equity or otherwise, connected with, or arising in relation to the Terms and Conditions or the provision of Products to the Purchaser. Further, in so far as and to the maximum extent that it may lawfully do so, AT limits any liability under contract to the cost of repair, or replacement, of the Products (whichever is the lesser or at the discretion of AT).
The Purchaser may be entitled to statutory rights under the Australian Consumer Law and AT does not exclude, restrict or modify those statutory rights the Purchaser may have in respect of reasonably foreseeable loss or damage caused by any failure to comply with a consumer guarantee (if a consumer guarantee applies to the Purchaser). In all other respects, in so far as and to the maximum extent possible under the law, AT and all or any of the officers, agents and employees of AT and of its agents and franchises shall not be liable in any way whatsoever for any indirect or consequential loss or loss of profit including in particular but not limited to any loss by reason of delay, negligence or any act or matter or thing done, permitted or omitted by AT or any officers, agents or employees, and the Purchaser shall have no rights to off-set claims against the invoiced prices for Products under any circumstances.
To the extent that the Purchaser offers any express warranty against defective goods, from 1 January 2012, the Purchaser will ensure that the warranty complies with the requirements set out at Regulation 90 of the Competition and Consumer Regulations 2010 (Cth).
16.1 The Purchaser shall not without the written consent of AT engage in any conduct including any act or omission whatsoever in relation to a complaint by a customer of the Purchaser which would be likely to indicate directly or indirectly any acceptance of liability by the Purchaser or AT in relation to the subject matter of that complaint.
16.2 To the extent permitted by the Competition and Consumer Act 2010 AT’s liability for breach of a consumer guarantee (to the extent that such a guarantee applies), including any consequential loss which the Purchaser may sustain or incur, shall be limited to one of the following at the elect of AT;
a) repair or replacement of the Products or supply of equivalent Products; or
b) payment of the cost of having the Products repaired, replacing the Products or acquiring equivalent Products.
17.1 The Purchaser and each of the signatories to this form on behalf of the Purchaser and the Guarantors (if any) WARRANT to AT JOINTLY AND SEVERALLY that all the information provided to AT in or in connection with this Application or otherwise in respect of seeking to purchase Products from AT are true and correct in every particular and JOINTLY AND SEVERALLY INDEMNIFY AT from and against all loss claims demands and costs occasioned as a result of such information not being correct in any particular. The Purchaser further undertakes to notify AT of any change in its circumstances which renders the information provided to AT with this Application likely to be inaccurate, misleading or obsolete.
17.2 The Purchaser acknowledges that it has received a copy of this Application.
18.1 Upon execution of this Application by the Purchaser and acceptance by AT signified by its acknowledgment to the Purchaser, all subsequent contracts for the sale of goods between AT and the Purchaser shall be deemed to incorporate all of the Terms and Conditions contained in this Application to the exclusion of all other Terms and Conditions including those which may have previously existed between parties in such contracts.
18.2 AT shall have the right to vary or amend any of the provisions of these Terms and Conditions by written notice to the Purchaser at any time in advance. Any Order placed by the Purchaser with AT after the date of such notice shall be deemed to be placed subject to these Terms and Conditions as varied in that notice.
18.3 The failure of AT at any time to require performance by the Purchaser of any provision of these trading terms shall not affect in any way the full rights of AT to require such performance at any time thereafter nor shall the waiver by AT of a breach of any provision hereof be deemed a waiver of the provision itself or any other provision hereof.
18.4 AT reserves the rights to authorise sales through the internet and the Purchaser shall seek authorisation from AT should the Purchaser desire to do so. If approved, the Purchaser shall follow AT’s internet policy which will be available on request. The Purchaser understands that AT seeks to present its Products in a manner that is in sync with its overall legitimate commercial policies and would need to protect the interests of those who invest in this technology by restricting authorization to those who meet its commercial criteria. The Purchaser agrees not to challenge any decision by AT on such non approval and if approved shall conform the guidelines for internet sales.
18.5 AT reserves the rights to supply particular goods to certain Purchasers for legitimate commercial reasons. With the exception of the Products supplied to the Purchaser under this agreement/Application, the Purchaser agrees that it has no right to demand supply in respect of these other product.