Terms & Conditions

TERMS & CONDITIONS

In these Terms and Conditions, Company means HAGEMEYER BRANDS AUSTRALIA PTY LTD (“HBA”) and the Purchaser means the Purchaser whose order for the purchase of goods is accepted by the Company (HBA)

1. QUOTATION
Any quotation made by the company is not an offer to sell or to provide services and no order given in pursuance of any quotation shall bind the Company until accepted by it in writing or by the commencement of the supply or provision of services.

2. ACCEPTANCE OF BUYERS ORDER
Unless otherwise agreed in writing all orders are subject to acceptance by the Company within 30 days of receipt by the Company of the Purchaser's order and these terms and conditions will be deemed to be incorporated in any agreement between the Company and the Purchaser. Any terms and conditions contained in the order offer acceptance or other document of the Purchaser and, subject to the provisions of the Trade Practices Act, all representations statements terms conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.

Notwithstanding that HBA may have agreed to supply Goods on credit to a Purchaser such arrangements shall, without prejudice to HBA’s other rights be terminable on the given by HBA to the Purchaser for fourteen (14) days notice which such notice may be given at HBA’s sole discretion and at any time.

Credit arrangements shall be subject to limits set from time to time by Hba, and the Purchaser acknowledges that HBA may without any notice period reduce the amount of or terminate any credit account or limit given to any Purchaser.

HBA shall use reasonable endeavours to fill orders accepted by it but shall in no event be liable or responsible to the Purchaser or any of its Purchaser’s for any failure or inability to supply Goods ordered by the Purchaser.
HBA reserves the right to withdraw any Goods or any ranges of Goods from sale from time to time notwithstanding that such Goods may be displayed in lists of Goods available for purchase.

3. CANCELLATION OF ORDERS
Once placed, no order may be cancelled by the Purchaser except in writing and then and then only with the prior consent of the Company.

4. SUBSTITUTION
While descriptions of the equipment or services and brochures accompanying any quotations are as accurate as possible, we reserve the right to supply the equipment or services with such modifications and specification at the company's discretion.

5. PRICES
The prices of Goods shall be EX warehouse and shall be specified in the Company’s price list current at the time of invoice by the Company which prices and list may be varied by the Company at any time without notice.

Unless we state in writing to the contrary the price does not include GST, Sales tax, or other tax or duty, or installation.

All references to retail prices are recommendations only and there is no obligation to comply with the recommendation.

The Company reserves the right to charge a freight and handling fee on any order below a minimum amount to be determined at the companies discretion.

Unless a price is stated in writing to include GST, the Company may, in addition to the price for a supply, charge the Purchaser any GST which may be payable in respect of that supply.

6. PAYMENT TERMS
Payment Terms are Net 30 days from the end of the month in which the goods are purchased, to approved Purchasers only. All other sales are Cash With Order, unless agreed in writing by the Company.

If any payment is not made by the Purchaser to HBA on the due date thereof:

a) the Purchaser shall, without prejudice to HBA's other rights, pay HBA a default charge at the rate of two per cent (2%) per month or part thereof from the due date for payment until the date payment is made;

b) HBA reserves the right, and without prejudice to its other rights hereunder and at law, to cancel orders or to suspend deliveries of other Goods until such payment has been made; and

c) all moneys owing to HBA including all monies owing to HBA for Goods sold shall become immediately due and payable and the Purchaser shall indemnify HBA against all costs (including Solicitor and own client costs, commercial agents, commissions, freight, surcharges, fees, insurances, accounting costs, loss of profit and all interest) incurred by HBA as a result of such default and the action taken by HBA in respect of the same.

7. DELIVERY
The Company may deliver the goods by installments or partial shipments and the Purchaser will accept each delivery. Requirements of shall not be a condition or of the essence of the contract. The Company shall not be under any liability for direct or consequential loss or damage to the Purchaser arising from delay or postponement of delivery.

The Company shall have the sole and absolute discretion as to the choice of carrier and method of carriage of the goods. Should the purchaser nominate their own HBA reserves the right to make deliveries of orders of the goods by installments and the Purchaser shall pay for each installment. A delay in the delivery of an installment shall not relieve the Purchaser of its obligations to accept remaining deliveries.

In the event that the Purchaser alleges that any of the Goods have not been delivered as ordered it shall give written notification of such alleged non-delivery to Hba at its address specified in clause 10 hereof:

a) Within seven (7) days of the date of invoice relating to those Goods;

b) With a full description in writing of the alleged non-delivery; and

c) At the cost thereof of the Purchaser.

8. WARRANTY
Goods supplied by the Company to the Purchaser shall have the benefit of any Warranty given by the Manufacturer, however, subject to the Trade Practices Act, the Company shall not be liable for any damage direct, or consequential arising out of any defects. All other Conditions hereby expressly negated so far as they lawfully can be.

9. CLAIM AND RETURN POLICY
The Purchaser shall be responsible for inspecting the goods immediately upon delivery to ensure that the goods are those ordered by the Purchaser. The Purchaser's responsibility shall not in any way be diminished or extinguished in the case of Goods which are delivered to a third party at the direction of the Purchaser.

All claims must be submitted in writing within 7 days of receipt of invoice.

Goods cannot be returned for credit except with prior issuance by the Company of its Goods Return Authorisation Number.

Goods will not be accepted by warehouse unless the-Goods Return Authorisation is clearly marked on documents accompanying returned goods.

All goods returned should be in original packaging and include all, accessories manuals and instructions. Where any part of a product is not returned, HBA reserves the right to reduce credit by the price for said accessories, manuals and instructions.

Returned goods will be subject to count & inspection before credit is passed.

Where goods are returned for reasons other than faulty, damaged or incorrectly delivered goods, the Company reserves the right to apply a re-stocking fee of 15% of the sale price of the returned goods.

Requests for return relating to orders containing short dated film (less than 4 months dating) must be received in writing within 48 hours of receipt, otherwise all rights will be deemed to have been waived.

10. TITLE & RISK
The Purchaser acknowledges and warrants to HBA that the Purchaser is not insolvent and being a natural person has not committed an act of

bankruptcy or made an arrangement with his creditors or being a company knows of no circumstances which would entitle any debenture holder or

secured creditor, or any other party, to appoint a receiver, to petition for winding up of the Purchaser or apply for the appointment of a manager or

administrator or exercise any other rights over or against the Purchaser's assets. The Purchaser will immediately notify HBA if it becomes aware of

any such circumstances. The Purchaser acknowledges that these Terms and Conditions constitute an agreement to supply Goods to the Purchaser upon the Terms and Conditions herein set out and are not an unconditional sale of Goods to the Purchaser or until the Purchaser sells the goods to a third party or until the Goods are incorporated into end products and are not severable therefrom. The Purchaser acknowledges and agrees that no title to the Goods shall pass to the Purchaser by reason of the delivery of the Goods or the acceptance by HBA of the Purchaser's request to supply the Goods, although risk shall pass to the Purchaser on the delivery of the Goods. It is a condition of these Terms and Conditions that HBA shall remain the sole and absolute owner of the goods until such time as the agreed price of the Goods the subject of this supply contract, and all other Goods supplied by HBA to the Purchaser and all debts owing by the Purchaser to HBA shall have been paid in full to HBA by the Purchaser. Until such time as payment in full has been made for the Goods and all debts, the Purchaser shall be the bailee of all of the Goods for HBA and shall store them upon its premises separately from its own Goods or those of any other person in a manner which makes them readily identifiable as the Goods of HBA.

The Purchaser's right to possession of the Goods in which HBA retains title shall cease at whichever is the earliest of the following dates:

a) upon the expiration of time given by HBA for payment in full of the Goods;

b) if the Purchaser being a natural person commits an act of bankruptcy or compounds or makes an arrangement with his creditors, or any of them, or if any execution or distress is levied upon the Goods of the Purchaser,

c) if the Purchaser being a company is wound up, either compulsory or voluntary, or a receiver and manager appointed over the whole or a material part of its assets, or an administrator is appointed or the Purchaser reaches any composition or arrangement with its creditors.

Upon the cessation of the Purchaser's right to possession of the Goods in which HBA retains title, HBA or its agents may for the purpose of recovery of the Goods enter upon any premises where the goods are stored or where they are reasonably thought to be stored and may repossess the same and the Purchaser shall assist and indemnify HBA in relation to such recovery.

At any time prior to payment in full for all Goods supplied if the Purchaser sells on his or its own account, the Purchaser shall sell as agent and bailee of HBA in law and in equity and shall hold the proceeds thereof in trust for HBA and shall not mingle the proceeds with other monies and shall not pay the cheque or cash therefore into an overdrawn bank account.

In the case where a receiver, liquidator, manager or administrator is appointed to the Purchaser and at the time thereof the Purchaser shall not have received the proceeds of sale, the Purchaser or the receiver, liquidator, manager or administrator as agent for the Purchaser shall at the election of HBA assign to HBA within seven (7) days all rights against the person obliged to pay the proceeds of sale.

11. FORCE MAJEURE
The Company shall not be liable for any delay or failure to perform its obligations if such failure was caused by any event for which the Company could not reasonably have exercised control.

12. CREDIT ASSESSMENT
a) If any Products are supplied to Purchaser on credit, HBA may need to disclose to a credit reporting agency certain information referred to in clause 16(c) about Purchaser when assessing Purchaser’s application for credit and managing Purchaser’s account with HBA. Purchaser
authorities HBA to disclose such information to a credit reporting agency for these purposes.
b) Subject to HBA’s obligations under the Privacy Act 1988 (Cth) and other applicable laws, HBA may give the information referred to in
clause 16(c) to a credit reporting agency to create or maintain a credit information file about Purchaser. Purchaser agrees that HBA may disclose a credit report about it to any credit provider, debt collecting agency or HBA’s insurers for the purposes of assessing Purchaser’s credit-worthiness or to collect any overdue payments (as the case may be).
c) HBA may disclose the following information relating to Purchaser in accordance with clauses 16(a) and (b):
i. Purchaser’s name and address;
ii. Credit limits on Purchaser’s accounts;

iii. The amount of any payments which are overdue for at least 60 days;

iv. Where an overdue payment has been previously reported, advice that the payment is no longer overdue;

v. Cheques or credit card payments which have been dishonoured;

vi. Information that in the opinion of HBA, Purchaser has committed a serious credit infringement; and

vii. Information that HBA has ceased to supply the Products and services to Purchaser.

d) Purchaser agrees that HBA may obtain information about Purchaserfrom any business which provides information about the commercial credit-worthiness of persons for the purposes of assessing Purchaser’s application to purchase the Products on credit and collecting any overdue amounts.

e) HBA may refuse to supply the Products tp Purchaser on credit on the basis of Hba’s credit assessment of Purchaser.

13. PRIVACY
a) Purchaser agrees to Hba collecting, using and disclosing information about Purchaser of the kind referred to in clause 16(c) for various purposes, including to:

i. assess credit worthiness as outlined in clause 16;

ii. supply the products and services to Purchaser and the management of Purchaser’s account;

iii. communicate with purchaser about the products and services which HBA or its partners or affiliates may provide to Purchaser;

iv. implement these Terms and any Sales Contract; and

v. comply with relevant laws

b) HBA, at the written request of Purchaser, will:

i. provide Purchaser with access to any personal information relating to Purchaser held by HBA;

ii. correct or amend any personal information relating to Purchaser held by HBA which is inaccurate or out of date; and

iii. HBA will handle Purchaser’s personal information in accordance with relevant laws.

14. INTELLECTUAL PROPERTY

a) Purchaser acknowledges that:

i. All trademarks, copyright and other Intellectual property rights (“Intellectual Property”) embodied in or in connection with the Products and any related documentation, parts or software are the sole property of HBA or its suppliers; and

ii. All Intellectual Property of HBA or its suppliers may only be used by Purchaser with the consent of HBA or its suppliers, during the continuance of any relevant Sales Contract; and such consent-extends only to use essential for the purposes stated in it. Any licensing of Intellectual Property rights in any software products supplied to Purchaser will immediately cease upon expiry or termination of the relevant license agreement that governs their use.

b) Purchaser-must not, during or after the expiry or termination of any relevant Sales Contract, without the prior consent of HBA or its suppliers in connection with the products.

c) Purchaser will idemnify HBA against all liabilities, damages, costs and expenses which HBA may suffer or incur as a result of work done in accordance with Purchaser’s specification or as a result of the combination or use of the products with other equipment, parts or software not supplied by HBA and which results in the Infrigement of any intellectual Property of any person.

15. CONFIDENTIALITY
a) Purchaser acknowledges that HBA has disclosed and may from time to time disclose to Purchaser certain confidential information and documentation of HBA relating to the Products, their marketing, use, maintenance and software, including technical specification (“Confidential Information”).

b) Subject to clause 12(e), Purchaser must:

i. Only use the Confidential information solely for the purposes contemplated under any relevant Sales Contract; and

ii. Not during the continuation of such Sales Contract or thereafter, disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to any out such purposes.

c) If disclosure of Confidential Information to third parties is necessary. Purchaser will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as Purchaser is bound to protect NBA’s confidential Information under this clause 19.

d) Upon the expiry or termination of any relevant Sales Contract, Purchaser must cease to use and must return or destroy (as HBA may instruct) HBA’s Confidential Information in its possession or control.

e) The provisions of this clause 12 do not extend to any information which is:

i. At the time of disclosure, rightfully known to or in the possession or control of Purchaser and which is not subject to an obligation or confidentiality;

ii. Public Knowledge (otherwise than as result of a branch of this clause 19 or any other obligation or confidentiality);

iii. Approved to be disclosed by HBA; or

iv. Required to be disclosed by a government authority or by relevant laws.

16. GENERAL
a) HBA may amend these Terms at any time by giving Purchaser notice by mail, e-mail or by posting a notice on HBA's public website. By continuing to place orders for Products, Purchaser will be deemed to have accepted the revised Terms.

b) Any provision of these Terms which is invalid or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected,

c) Purchaser may not assign or attempt to assign any of its rights and obligations under these Term.

d) These terms are governed by the laws of the State of New South Wales.

17. INSURANCE
Where the Company agrees to store or hold on consignment goods on behalf of the Purchaser, all risk remains with the Purchaser. Any goods so

held are to be insured for full purchase value by the Purchaser.

18. ADDRESS
Where in these Terms & Conditions reference is made to the address of Hagemeyer Brands Australia Pty LTD the registered office is:

Hagemeyer Brands Australia Pty Ltd
104 Vanessa Street
KINGSGROVE NSW 2208

19. JURISDICTION & APPLICABLE LAW
The Terms and Conditions shall be governed and construed in accordance with the laws of the Commonwealth of Australia and in particular the State of New South Wales.

The parties agree that the Courts of New South Wales shall have jurisdiction to hear and determine any dispute arising hereunder.

20. ASSIGNMENT
This agreement shall not be assigned by the Purchaser whether voluntarily, involuntarily or by operation of Law without the prior consent of the Company. No such assignment by the Purchaser howsoever occurring shall relieve the assignor of its obligations hereunder.

21. SEVERABILITY
In the event that any or part of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent such terms, conditions or provisions shall be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.