The Terms and Conditions of Sale and or Service (conditions) for this Agreement are as follows. All sales of Products are subject to the following conditions.
1. DEFINITIONS AND INTERPRETATION
In these conditions:
1.1 “Officetex” means Officetex Pty Ltd ACN 161 168 725
1.2 “Purchaser” means the Person or Company placing the order with Officetex and entering into this agreement for the purchase of Products.
1.3 “Order” means a purchase order for Products which has been accepted by Officetex but excluding any terms or conditions printed on or referred to in The Purchaser’s purchase orders or other documentation unless expressly agreed to in writing by Officetex.
1.4 “Products” means the products listed on the front of the invoice supplied by Officetex to the Purchaser under a Contract of which these conditions form part.
1.5 “PPSA” means the Personal Property Securities Act 2009 (Cth), its respective regulations, or any amendment or re-enactment of those Acts,
1.6 “Insolvency Event” means circumstances in which the Purchaser is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for:
1.5.1 its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Officetex;
1.5.2 the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or
1.5.3 seeks protection or is granted protection from its creditors, under any applicable legislation.
1.7 “Terms” means these terms and conditions of sale.
1.8 In these Terms and any Contract, unless the contrary intention appears:
1.8.1 a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
1.8.2 a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
1.8.3 a reference to dollars is to Australian Dollars;
1.8.5 the word “including” and similar expressions are not words of limitation;
1.8.5 a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
1.8.6 where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
2. POSSESSION AND AGENCY
Nothing in these conditions of sale or any circumstances arising from the fact that the Purchaser obtains possession of the Products prior to obtaining title or any other circumstances makes the Purchaser an agent of Officetex for any purpose whatsoever.
3.1 All orders for Products must be placed in the manner and form required by Officetex from time to time.
3.2 Officetex may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to the purchaser.
3.3 All orders will be subject to acceptance by Officetex, which may decline an order or accept an order in whole or part in its absolute discretion. No order for a Product shall be binding on Officetex unless or until accepted by Officetex and the Purchaser is notified of such acceptance.
3.4 The Purchaser acknowledges that acceptance of an order by Officetex will not imply that Officetex will accept any future order(s) placed by the Purchaser.
3.5 Once accepted by Officetex, an Order may not be cancelled by the Purchaser except with the express consent of Officetex.
3.6 Upon the acceptance of each Order by Officetex, a separate Contract of sale will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in these terms and conditions will prevail only to the extent of the inconsistency.
3.7 For the avoidance of doubt no terms or conditions of the Purchaser, including any terms or conditions printed on or referred to in the Purchaser’s offer to purchase or order, will be binding on Officetex or have any legal effect unless expressly agreed to in writing by Officetex.
4. TITLE AND SECURITY INTEREST
4.1 Legal and beneficial ownership in the Products will not pass to the Purchaser until the Purchaser has paid in full the Price for those Products.
4.2 Until all outstanding monies have been paid to Officetex for Products delivered to The Purchaser:
4.2.1 The purchaser must separately store those Products in such a way that makes it clear that they are the property of Officetex;
4.2.2 in the event of a default (specified in clause 10 below), Officetex or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by the Purchaser to search for and remove any of those Products without in any way being liable to the Purchaser, and may dispose of or retain such Products as Officetex sees fit without being required to give notice or account to the Purchaser. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Officetex may (when practical) disconnect them in any way necessary to remove the Products; and
4.2.3 all costs and expenses incurred by Officetex as a result of taking action in accordance with clause 4.2.2, together with transportation and storage charges, must be paid by the Purchaser to Officetex on demand.
4.3 Until title to the Products passes to The Purchaser, The Purchaser acknowledges and agrees
4.3.1 that the Products supplied and not resold are held by it as a bailee for Officetex;
4.3.2 The Purchaser may resell the Products without the right of The Purchaser to bind Officetex to any liability to any third party (whether contractual or otherwise);
4.3.3 any resale of the Products must only be made on the condition the purchaser is expressly made aware of the existence of Officetex’s rights under this clause 4;
4.3.4 if the Products have been resold by The Purchaser, The Purchaser will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for Officetex immediately when they are receivable or received;
4.3.5 when the proceeds held in trust for Officetex under clause 4.3.4 are received they must either be paid immediately to Officetex or held in a separate bank account as trustee for Officetex and they must not be used by The Purchaser in any other way whatsoever; and
4.3.6 the authority conferred on The Purchaser by clause 4.3.2 may be revoked by written notice from Officetex at any time if Officetex deems the credit of The Purchaser to be unsatisfactory or if The Purchaser is in default in the performance of its obligations under any Contract, these Terms or any other agreement between Officetex and The Purchaser.
4.4 This clause 4 creates a purchase money security interest in the Products, any goods in which the Products are used as a component, and all proceeds from their respective resale by The Purchaser. Where required, the Purchaser agrees to complete documentation pursuant to the PPSA granting Officetex a purchase money security interest in the Products and all other product supplied by Officetex
5.1 Officetex may, at its discretion, vary these conditions without notice to the Purchaser.
5.2 Any variations to these conditions made by the Purchaser shall not be binding on Officetex unless consented to in writing by Officetex.
6. PRICE AND PAYMENT
6.1 The price for the Products is specified in the Invoice. Officetex may alter the price at any time prior to acceptance of an order without prior notice.
6.2 The purchaser must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to payment of the price for the products. Officetex will provide the purchaser with a tax invoice as required by law.
6.3 The Purchaser must pay the price for the products supplied to it within 30 days of the date of the invoice for such Products.
6.4 The Purchaser must not withhold payment or make any deduction from the invoiced price or any other amount owing to Officetex without Officetex’s prior written consent.
6.5 Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
6.6 Officetex may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
6.7 Officetex may charge interest on any overdue monies at the rate which is 2% above the rate charged by Officetex’s major banker for commercial overdraft balances of over $100,000 from time to time, calculated from the due date for payment of the outstanding amount until the date of payment by The Purchaser. Any payment made by The Purchaser will be credited first against any interest that has accrued.
6.8 Officetex will be entitled to recover from the Purchaser all legal and other costs incurred by Officetex arising from the Purchaser’s default in payment and the collection of any overdue monies.
7. DELIVERY AND RISK
7.1 Officetex shall despatch the Products into destination or as the Purchaser directs and as agreed by Officetex.
7.2 The purchaser acknowledges that loss or damage that occurs during shipping of the products is not the responsibility of Officetex. Loss or damage that occurs during shipping by a carrier selected by the Purchaser is the Purchaser’s responsibility.
7.3 The purchaser is not entitled to make any objection or claim for compensation or damages, nor have any right of rescission or termination of this agreement, in relation to damage or loss that occurs to the Products during shipping to the Purchaser’s destination.
7.4 Any time quoted for delivery is an estimate only. Officetex will not be liable for any loss suffered by the Purchaser arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities.
7.5 Officetex reserves the right to make part delivery of any order and each part delivery shall constitute a separate contract. If Officetex fails to deliver some or all of the Products pursuant to a Contract, the Purchaser will not be entitled to cancel that Contract or any other order, Contract or delivery. Officetex will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Officetex within twenty-four (24) hours after receipt by The Purchaser of the Products at the delivery destination.
7.6 If the Purchaser does not, or indicates to Officetex that it will not take or accept delivery, then the Products will be deemed to have been delivered when Officetex was willing to deliver them.
7.7 Officetex may suspend or cancel delivery of the Products if Officetex reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from the Purchaser to Officetex remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Officetex’s part.
7.8 The Purchaser is not to sell, supply or otherwise deal with the Products supplied to them. If they do, Officetex is indemnified from all liability in relation to the products.
7.9 Risk in the Product shall always remain with the Purchaser. Title to the Product’s software (if any) remains with the applicable licensor(s) at all times.
8.1 The Purchaser shall inspect the Goods on delivery and must, within twenty-four (24) hours of delivery, notify Officetex of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
8.2 The Purchaser shall afford Officetex a reasonable opportunity to inspect the Goods within a reasonable time following delivery if the Purchaser believes the Goods are defective in any way. If the Purchaser fails to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.3 No returns shall be accepted by Officetex unless authorised in writing or by arrangement with the relevant Officetex Manager.
8.4 All returns, if authorised or accepted by Officetex, must be sent freight paid to Officetex’s Principal Office at the expense of the purchaser.
8.5 Any discount or allowance (however determined) granted by Officetex to the Purchaser shall be credited against the invoice price of the Product and represents a reduction of that price.
9.1 All warranties, conditions, guarantees and liability implied by law other than:
9.1.1 Those which may not be lawfully excluded under the Competition and Consumer Act (2010) or any other Commonwealth, State or Territory Legislation, the Fair Trading Act (1986), the Sales of Goods Act 1908 or the Consumer Guarantees Act 1993 (in which case, to the extent permitted by law), Officetex’s liability is limited, at its option, to the replacement of the Products or the repair of the Products; and
9.1.2 Any express warranty contained in a warranty card (if any) accompanying the Product are hereby excluded to the maximum extent legally permissible.
9.2 Subject to clause 9.1 above, Officetex shall not be liable for any direct, indirect, incidental or consequential loss, injury or damage whatsoever (including but not limited to loss of profits, damage or claims by third parties) which the Purchaser may suffer in respect of the purchase of the Products.
9.3 Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51, 52 and 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Officetex’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Officetex under these Terms, are excluded.
If an Insolvency Event occurs in relation to the Purchaser any other event occurs which gives Officetex reasonable grounds for doubting the credit of the Purchaser, Officetex may by notice to the Purchaser, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by the Purchaser in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by the Purchaser.
11. ASSISTANCE SUPPLIED BY OFFICETEX
Subject to obligations imposed on Officetex by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Officetex in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Officetex and without intention that the Purchaser should rely thereon.
12. LIMITATION OF LIABILITY
12.1 Where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Officetex to the Purchaser under such implied terms, conditions or warranties is limited, at the option of Officetex, to the repair or replacement of goods.
12.2 Except as expressly provided in these Terms, to the extent permitted by law, Officetex will have no liability to the Purchaser, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
13.1 If the Purchaser gives instructions to Officetex with respect to the manufacture, packaging, sale or supply of the Products, the Purchaser warrants to Officetex that adherence by Officetex to any such instructions will not infringe the intellectual property rights of any other person.
13.2 The Purchaser releases and indemnifies Officetex, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of the Purchaser’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
Any notice in connection with these Terms or any Contract will be deemed to have been duly given when made in writing and delivered or sent by facsimile, post or email to the party to whom such notice is intended to be given, at the address, facsimile number or email address of that party in the Contract or to such other address, facsimile number or email addresses as may from time to time be notified in writing to the other party.
These Terms and Contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
16.1 If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
16.2 Any failure by Officetex to insist upon strict performance by The Purchaser of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Officetex in relation to the provision.
16.3 The Purchaser must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Officetex.
16.4 These Terms (together with the Invoice(s)) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
16.5 These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.1
16.6 The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.
16.7 These Terms and the provisions of all Contracts, are confidential and must not be disclosed by The Purchaser to any third party without Officetex’s prior written consent unless such disclosure is required by law. This restriction does not apply to any of these Terms or provisions of Contracts that Officetex has itself placed in the public domain.