1.1. ‘Act of God’ means any act of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or a telecommunications service and any other similar act which is beyond the reasonable control of a party, but does not include an obligation to pay money.
1.2. ‘Agreement’ means this agreement between the Seller and the Buyer and includes these terms and the Order Form.
1.3. ‘Application for Credit’ means an application for a credit account submitted by the Buyer to the Seller.
1.4. ‘Business Day’ means Monday to Friday except public holidays in Victoria, Australia.
1.5. ‘Buyer’ means the person so named in this Agreement or otherwise on the Order Form or Quotation and/or any other person who orders or purchases any Goods and/or Services from the Seller.
1.6. ‘Goods’ means the goods supplied by the Seller to the Buyer, including as a result of the Services.
1.7. ‘Guarantor’ means the person (or persons) who agree to be liable for debts and the obligations of the Buyer as guarantor.
1.8. ‘Intellectual Property Rights’ means all intellectual property rights of any kind whatsoever throughout the world including all rights which subsist in copyright, patents, trademarks, designs, circuit layouts and plant breeders rights irrespective of whether such rights are registered or capable of being registered.
1.9. ‘Order’ means any order placed by the Buyer with the Seller for the Goods and/or Services which are described in the Order Form, Quotation or otherwise agreed between the parties.
1.10. ‘Order Form’ means an order form or other document which describes the Goods and/or Services to be supplied by the Seller.
1.11. ‘Price’ means the price of the Goods and/or Services as agreed between the Seller and the Buyer subject to clause 4 of this Agreement.
1.12. ‘Quotation or Quote’ means a quote provided by the Seller to the Buyer in respect of the supply of certain Goods and/or Services.
1.13. ‘Seller’ means Karmac Industries (Aust.) Pty Ltd (ACN 006 797 913) and its successors and assigns.
1.14. ‘Services’ means all services supplied by the Seller to the Buyer including, without limitation, any advice, recommendations, design, creation of drawings and sketches, or the creation of the Goods as requested by the Buyer.
1.15. In the interpretation of this Agreement unless the contrary intention appears:
a) headings are for convenience only and do not affect the interpretation of this Agreement.
b) the words “includes” or “including” will not limit whatever follows.
c) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders.
d) a reference to any legislation includes a reference to any modification or re-enactment; and
e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
2.1. Without limiting the way in which the Buyer may become bound by this Agreement, the Buyer will become bound by this Agreement by:
a) signing a copy of this Agreement.
b) placing an Order with the Seller for the supply of Goods and/or Services.
c) signing a copy of the Order Form or Application for Credit; or
d) accepting the Goods supplied by the Seller.
2.2. Where more than one Buyer has entered into this Agreement, the Buyers shall be jointly and severally liable for their obligations under this Agreement.
2.3. The Buyer undertakes to give the Seller not less than fourteen (14) days advance 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 address, facsimile number, or business practice).
3.1. The Goods and/or Services to be supplied by the Seller are as described in the Order Form or Quotation.
3.2. The Seller is not obligated to supply to the Buyer any Goods and/or Services Ordered by the Buyer until the Seller communicates In writing its acceptance of the Order to the Buyer.
3.3. Where the Services involve the design and manufacture or production of Goods for the Buyer, the Seller may in its sole discretion determine not to proceed with manufacture or production until such time as the Buyer has approved the design of the Goods in writing.
3.4. The Seller may in its sole discretion refuse to accept any Order and/or to supply part or all of any Order.
4.1. At the Seller’s sole discretion, the Price shall be either:
a) as Indicated on the Order Form or any invoices provided by the Seller to the Buyer in relation to the Order; or
b) subject to clause 4.2, the Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Quote within thirty (30) days of the date of the Quote.
4.2. Time for payment for the Goods and/or Services shall be of the essence and will be stated on the Order Form, invoice, Quotation or in any other forms. If any credit is granted by the Seller, then payment will be as specified in the terms of the Application for Credit. If no time is stated then payment shall be on delivery of the Goods and/or Services, and in the case of delivery of Goods and/or Services in instalments, payment will be due on completion of each instalment. If any of the forgoing may impose more than one due date for a payment on the Buyer, then the earliest due date will prevail.
4.3. Unless specified to the contrary on any Quote, invoice or Order Form, the Price shall be deemed to be exclusive of any GST and any other taxes, duties, levies, withholdings, government ordinances and related fines, penalties or interest payable by the Seller in respect of the supply of the Goods and/or Services (Taxes). The Buyer will indemnify the Seller in respect of such Taxes and will at the same time as paying the Price to the Seller, pay the Seller the amount of such Taxes.
5.1. Delivery of the Goods shall be made to the Buyer’s address as indicated by the Buyer to Seller at the time of placing the Order. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If the Buyer fails to make such arrangements then, at the Seller’s discretion, delivery of the Goods shall be made to the Buyer at the Seller’s address.
5.2. Delivery of the Goods will be deemed to have occurred when the Seller delivers the Goods directly to the Buyer or its agent or representative, or when the Seller delivers the Goods to a carrier for subsequent delivery to the Buyer or its agent or representative.
5.3. The Seller may deliver the Goods and/or Services by separate instalments (in accordance with the agreed delivery schedule). Each separate Instalment shall be invoiced and paid for in accordance with the provisions of this Agreement.
5.4. Delivery of the Goods and/or Services to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this Agreement.
5.5. The Buyer shall be responsible for insuring the Goods from the earlier of their delivery to the Buyer or from the time that they are provided to a carrier for subsequent delivery to the Buyer
5.6. The failure or delay of the Seller to deliver the Goods and/or Services shall not entitle either party to treat this Agreement as repudiated or breached by the Seller.
5.7. The Seller shall not be liable for any loss or damage whatsoever due to any failure or delay by the Seller to deliver the Goods and/or Services (or any of them) promptly, by any particular due date, or at all.
5.8. Delivery and provision of any Services will take place on dates and times separately agreed between the parties.
6.1. All risk for the Goods passes to the Buyer on delivery as determined under clause 5.
6.2. If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer (as determined under clause 10), the Seller is entitled, without prejudice to any of its other rights or remedies under this Agreement (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under this Agreement. The production of this Agreement by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.1. Property in the Goods shall not pass from the Seller to the Buyer unless and until:
a) the Buyer has paid to the Seller all amounts owing for the particular Goods under this Agreement; and
b) the Buyer has met all other obligations of the Buyer to the Seller in respect of all agreements between the Seller and the Buyer, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
7.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
7.3. It is further agreed that until such time as property in the Goods shall pass from the Seller to the Buyer.
a) the Buyer shall return the Goods immediately or any of them to the Seller upon receiving the Seller’s written request. Upon the date of receipt of such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
b) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made.
c) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee and licensee of the Buyer, where the Goods are situated and take possession of the Goods;
d) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from its sale or disposal of the Goods on trust for the Seller.
e) the Buyer shall not deal with any money of the Seller in its possession in any way which may be adverse to the Seller
f) the Buyer shall not encumber or charge the Goods in any way or grant or otherwise give any interest in the Goods while they remain the property of the Seller
g) the Seller may issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and
h) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted or made part of any end product, the parties agree that the Seller will be the owner of the end product.
8.1. If any provision of this Agreement is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
8.2. The Seller may license or sub-contract all or any part of its rights and obligations under this Agreement without the Buyer’s consent.
8.3. The Seller reserves the right to review the terms and conditions of this Agreement at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.
8.4. Neither party shall be liable for any default due to any Act of God.
8.5. A waiver of any right or power under this Agreement will only be valid if given in writing by the party granting the waiver.
8.6. This Agreement supersedes all prior representations, arrangements and agreements between the parties in relation to its subject matter and forms the entire agreement between the parties.
8.7. Each provision of this Agreement capable of having effect after termination shall survive termination of this Agreement and shall not merge on such termination.
8.8. This Agreement shall be governed by the laws of the State of Victoria and the parties’ consent to the jurisdiction of the Courts of the State of Victoria and their Courts of appeal.
The Buyer acknowledges that pursuant to clause 2.1 it will be bound by this Agreement