SALES TERMS
Standard
terms and conditions of sale (“Terms”)
1.
Definitions
“Invoice”
means the written invoice sent from Seller to Customer accepting a Purchase
Order.
"Assets" means any
products or services (if applicable) supplied to Customer by Seller.
“Customer" means the
person, business, company or other entity that is the purchaser
of the Assets.
“Delivery Address” means the
address for delivery of Assets nominated in an Invoice.
“Delivery Date” means the date
for delivery of Assets by Seller to Customer as detailed in an Invoice.
“Force Majeure” means an event
which includes without limitation any acts of God, war, riots, strikes, lock
outs, trade disputes, fires, break downs, mechanical failures, interruptions of
transport, Government action or any other cause whatsoever, whether
or not of a like nature to those specified above, outside the reasonable
control of Seller.
“ITSG” means Industry Trading Pte. Ltd., Singaporean Unique Entity Number 201910623Z.
“Lifecycle Plus” means LPAU,
ITSG or LPNZ (as the case may be).
“LPAU” means Industry Trading
Pty Ltd ATF Industry Trading Unit Trust trading as Lifecycle Plus, Australian
Business Number 84 675 175 616.
“LPNZ” means Lifecycle Plus
Limited, New Zealand company number 6295355.
“Payment Date” means the date
by which the Purchase Price must be paid by Customer as detailed in an Invoice.
"Purchase Order"
means any order or request from Customer to Seller whether orally or in writing
for the purchase of Assets from Seller.
“Purchase Price” means the
price to be paid by Customer to purchase the Assets as detailed in an Invoice.
“Re-stocking Fee” means a fee
paid to Seller by Customer to compensate Seller for Seller’s warehousing, stock
handling and administrative activities up to 20% of the Purchase Price.
"Seller" means LPAU, LPNZ
or ITSG as the case may be and as detailed in an
Invoice.
2.
General
a.
The
Terms and each Invoice constitute the entire agreement (“Contract”) in relation
to the Seller’s supply of Assets to Customer under that Invoice and supersede
all prior understandings, arrangements and agreements between Seller and
Customer.
b.
For
the avoidance of doubt, none of the terms and conditions contained in any
document or other instrument supplied by or on behalf of Customer shall apply
to or form part of Contract, except and to the extent otherwise agreed in
writing by Seller.
c.
Purchase
Orders are subject to acceptance by Seller in writing and no Contract between
Seller and Customer comes into existence until Seller has accepted a Purchase
Order by way of issuing an Invoice to Customer.
d.
Seller
may revise or amend the Terms (“Revised Terms”) at any time and by any of the
following: giving Customer notice by mail or e-mail; or by posting Revised
Terms on Seller’s public website. By continuing to place Purchase Orders,
Customer agrees that any and all resulting Contracts
will be governed by the Revised Terms.
3.
Purchase price
a.
Customer
will pay the Purchase Price to Seller on or before the Payment Date in full and
cleared funds.
b.
In the event that Customer does not make payment of the Purchase
Price by Payment Date, Supplier at its sole discretion may:
i. Refuse to deliver the Assets to
Customer until payment of the Purchase Price is made; and/or
ii. Refuse to make further supplies
to Customer under Contract or any other Contract, agreement
or arrangement with the Customer; and/or
iii. Terminate Contract, or any
other Contract, agreement or arrangement without
notice.
4.
Delivery
a.
Where
an Invoice provides for delivery of the Assets to the Delivery Address by
Seller or Seller’s agent, all packing, shipping and
transportation costs including in-transit insurance will be borne by Seller
unless otherwise expressly stated in the Invoice.
b.
Delivery
Date is an estimate only and Seller will not be liable for any loss, damage or
delay suffered or incurred by Customer or any other party arising from delivery
of Assets after Delivery Date or non-delivery of the Assets.
5.
No other representation or
warranty
a.
Other
than the 30-Day Warranty contained in clause 5(e), Seller makes no
representation or warranty in relation to, without limitation, the design or
condition of the Assets, their merchantability or fitness, capacity or
durability for any particular purpose, quality of the material or workmanship,
non-infringement of any patent, trademark, copyright
or other intellectual property.
b.
Customer
agrees and acknowledges that where the Assets are second hand and/or used, that
Customer purchases the Assets “as is” subject to all faults and defects and
that Customer shall have no recourse of any kind against Seller in relation to
any faults or defects in the Assets (including under subclause 2(e) of the
Terms which is given without warranty).
c.
Customer
agrees and acknowledges that Seller has entered into this agreement in reliance
on this clause 5 and hereby waives, releases and discharges Seller from any
claim, action, loss, damage, cost or expense
whatsoever in connection with the Assets and shall indemnify Seller against the
same including as may be implied by any law.
d.
This
clause 5 shall survive termination of Contract and any transaction contemplated
by Contract. Seller shall not be liable to Customer for indirect, special, consequential or incidental damages or any loss of profits
of any nature arising in connection with Contract or any transaction
contemplated by Contract.
e.
Seller
warrants to Customer that the Assets supplied to Customer match in quantity and
condition the Assets described by Seller under the Contract (“30-Day
Warranty”). Customer has the period of thirty (30) days (“30-Day Period”) from
the date risk in the Assets passes to Customer (as such risk is provided for in
clause 7) to raise any issues with the quantity and/or condition of the Assets
supplied (“Asset Issues”). Should Customer not raise any Asset Issues during
the 30-Day Period, Customer is deemed to have confirmed to Seller that no Asset
Issues exist. Where Asset Issues are raised during the 30-Day Period, Customer
will promptly comply with any requests made by Seller for further information
regarding the Assets and/or Asset Issues and/or provide Seller (including
Seller’s agents) with access to the Assets. Seller will then make a final
determination as to the merits of the Asset Issues and whether Seller should:
i. Replace any Assets (“Replacement”);
ii. Refund the Purchase Price (or
part thereof) paid by Customer under Contract to account for Asset Issues (“Refund”);
and/or
iii. Accept return of the Assets and
refund the Customer for the Purchase Price of the Assets (or part thereof) paid
by Customer under the Contract (“Return”)
(separately or together, a “Credit”).
In the event that Seller makes any
determination under subclause 5(e)(i) then Customer
shall within 24 hours of being directed to so do by Seller:
iv. arrange for the Assets to be returned to Seller at a location
advised by Seller at Customer’s expense (and execute such dispatch); or
v. make the Assets available for collection
by Seller, and transfer monies to Seller immediately on demand (and in advance
of collection) for the cost of that collection; and
vi. arrange for replacement Assets as advised by Seller to be collected
from Seller at a location advised by Seller at Customer’s expense.
No replacement of Assets under
subclause 5(e)(i) shall be effected
by Seller until Seller has taken possession of the Assets being replaced,
whether by operation of subclause 5(e)(iv) or (v) (as the case may be).
In the event that Seller makes any
determination under subclause 5(e)(iii) then Customer shall within 24 hours of
being directed to so do by Seller:
vii. arrange for the Assets to be returned to Seller at a location
advised by Seller at Customer’s expense (and execute such dispatch); or
viii. make the Assets available for collection by Seller,
and transfer monies to Seller immediately on demand (and in advance of
collection) for the cost of that collection.
No reimbursement of the
Purchase Price of Assets under subclause 5(e)(iii) shall be effected
by Seller until Seller has taken possession of the Assets being replaced,
whether by operation of subclause 5(e)(vii) or (viii) (as the case may
be).
Should Customer not (as each applies
by operation of these Terms):
ix. fulfil any of its obligations under subclauses 5(e)(iv), (v), (vi)
(vii) or (viii); or
x. put Assets into Seller’s possession under 5(e)(iv) or (vii) within
28 days of dispatch;
then any rights of the Customer
given under this clause 5(e) shall immediately be deemed cancelled, null, void
and revoked.
Customer must do all things
necessary to allow Seller to effect Replacement, Refund or Return (as the case
may be) within a 12-month period from the date of Invoice from which each
Credit arose, and where Customer does not so do, the Credit (or any outstanding
portion of the Credit) will cancelled, null, void and
revoked upon the expiry of that period.
Where Seller takes possession
of Assets by way of Replacement or Return and Seller forms the opinion that any
Asset Issues raised by the Customer do not exist, are overstated, disingenuous,
incorrect or misleading in any way (“False Issue”),
then Seller may at its discretion charge Customer (“Issue Charge”):
xi.
a
Re-stocking Fee; and/or
xii. such sum which in the Seller’s
opinion compensates Seller for any loss, cost, damage and/or the effect of the False
Issue suffered or incurred by the Seller; and
Seller may apply or set off an
Issue Charge against any Credit, Store Voucher, or funds or monies whatsoever held
by Seller and/or owing to Customer, and in the event no such application or
set-off of the Issue Charge can be made by Seller then payment of the Issue
Charge shall immediately become due and owing by Customer to Seller.
f. Seller shall not under any circumstances be
liable to reimburse, pay or otherwise compensate Customer for any expense,
cost, fee, monies or any other sum except as expressly
provided under these Terms.
6.
Title
a.
Legal
and beneficial title in the Assets supplied by Seller to Customer will not pass
to Customer and will remain the absolute property of Seller until such time as
Seller has received in full (cash or cleared funds) all sums due in respect of
the Purchase Price and any other monies due and owing to Seller under Contract.
7.
Risk
a.
Assets
supplied by Seller to Customer under Contract will be at Customer’s risk
immediately upon:
i. Delivery of the Assets to the
Delivery Address, Customer, Customer’s agent or otherwise into the Customer’s
custody or control; or
ii. Collection of the Assets from
Seller by Customer or Customer’s agent, including but not limited to Customer’s
nominated carrier.
8.
Import/export restrictions
a.
Customer
acknowledges that the Assets may be subject to the import/export control laws
and regulations of the country or state in which the Delivery Address is
located, or any other location at which Customer or its agent receives or
otherwise takes custody or control of the Assets.
b.
Customer
agrees to abide by all applicable import/export control laws and regulations.
c.
Customer
understands that applicable requirements or restrictions may vary depending on
the Assets and may change over time and that, to determine the precise controls
applicable to the Assets it may be necessary to refer to relevant laws and
regulations.
d.
Customer
indemnifies Seller upon demand (and without any set-off, deduction or
withholding) for any loss Seller suffers and all costs (including legal costs
on a full indemnity basis), charges, taxes, penalties, levies
and expenses Seller incurs as a direct or indirect result of Customer failing
to comply with all relevant laws relating to the export or import of the Assets
to or from any jurisdiction.
9.
Force majeure
a.
Seller
will not be under any liability whatsoever for the consequences of any failure
on its part to perform or delay in performing any obligation under Contract
where such failure or delay is due directly or indirectly to any event of Force
Majeure.
b.
If
there is an event of force majeure, Seller will notify Customer of the event
and the likely impact on its performance of Contract. If the event affects the
capacity of Seller to complete its material obligations under Contract in a
timely manner, Seller may by notice to Customer terminate Contract without any
liability whatsoever on its part arising from such termination.
c.
Customer’s
payment obligations under Contract are not affected by events of Force Majeure.
10. Cancellation
a.
Customer
cannot cancel a Contract or Invoice unless agreed in writing by Seller.
b.
Where
Seller agrees in writing that Customer may cancel a Contract or Invoice and
Customer has paid the Purchase Price to Seller (in part or in full), then
Seller may at its discretion:
i.
first,
charge Customer a Re-stocking Fee; and
ii. then, retain other Purchase
Price monies already paid to Seller (or a portion thereof) which the Seller
will not refund to Customer and which may only be used
by the Customer to pay for other goods and services which the Seller has agreed
in writing to supply the Customer (“Store Voucher”).
Store Voucher not
used by Customer within a 12-month period from the date of the Invoice from
which the Store Voucher has arisen will be forfeited to Seller.
11.
Taxes
a.
Customer
will be responsible for and shall pay, and reimburse Seller on demand for, all
taxes, fees levies, imposts, duties, withholdings or
other charges imposed by taxing authorities by reason of sale and delivery of
Assets under Contract or entry into Contract.
b.
Without
limiting the foregoing in this clause 11, Seller will charge
and Customer agrees to pay Goods and Services Tax (GST) on those products that
attract GST at the applicable rate.
12.
Liability
a.
To
the extent permitted by law, Seller will not be liable to Customer or any other
person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person,
or for any indirect, incidental or consequential damages sustained or incurred
by Customer, whether such liability arises directly or indirectly as a result
of:
i.
any
negligent act or omission or wilful misconduct of Seller or its employees or agents;
ii. the supply, performance
or use of any Assets; or
iii. any breach by Seller of its
obligations under Contract.
13.
Notices
a.
Any
notice to be given to Customer shall be deemed to be given upon its being
posted or sent by facsimile or email to Customer’s last known address, facsimile
number or email address. Notice will be deemed to be
effective upon receipt by Customer or three days from the date of posting or
sending, whichever occurs first.
14. Sub-contract
a.
Seller
at its sole discretion may sub-contract the performance of Contract or part
thereof to any other third party as Seller may at its sole discretion
determine.
15.
Proper Law and Jurisdiction
a.
Seller
and Customer agree that the Contract shall be governed by and construed in
accordance with the laws of New South Wales, Australia, and the Seller and
Customer submit to the exclusive jurisdiction of the courts of New South Wales,
Australia in respect of all matters arising out of or relating to the Term or
the Contract, its performance or subject matter.
16.
Miscellaneous
a.
Customer
acknowledges and agrees it shall obtain no title to or right in relation to any
software or other licensed products (“Products”) attached to or forming part of
the Assets and such Products shall at all times remain the property of their rightful owner.
Prior to the legal use of any such Products, Customer must obtain permission to
do so from the owner of the Products and Seller shall have no liability to
Customer in relation to the Customer’s use of the Products.
b.
If
the Assets contain any features not specified in Contract, Customer grants to
Seller, at Seller’s option and expense, the right to remove those features.
c.
Any
provision of the Terms which is invalid, illegal or
unenforceable will be read down to the extent necessary or severed from the
Terms, and the remaining provisions of the Terms will continue unaffected and
remain in force.