Stramit Corporation Pty Limited (ABN 57 005 010 195)

Effective Date: 16 September 2019

By submitting an application for a Credit Account and/or ordering Goods from Us, You agree that the following Terms and Conditions of Sale (“Conditions”) will apply to the supply.  

1. DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

(a) Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977(US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth) and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which We or any member of the We carry on business;

(b) Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(c) Australian Standards means the applicable codes and guidelines published from time to time by Standards Australia

(d) Consumer Contract has the meaning given to that term in the Australian Consumer Law;

(e) Contract means the contract for the sale and/or supply of Goods between You and Us that is constituted by these Conditions and any application for a Credit Account;

(f) Credit Account means the commercial credit account You have with Us under the Contract;

(g) Due Date means the date You must pay for the Goods as specified on Our invoices;

(h) Force Majeure Event means any event outside a party’s reasonable control which may affect the parties’ obligations under the Contract, including acts of Gods, war, terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay labour disputes, theft, criminal actions or any other similar events;

(i) Goods means all goods, merchandise and/or services requested by You in any Order and/or supplied by Us to You under a Contract from time to time;

(j) GST and related terms have the meanings given to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(k) Insolvency Event means any action which places an entity or individual under external management in respect of its assets or where an entity or individual makes an assignment, agreement or arrangement in respect of its assets for the benefit of its creditors, including but not limited to the appointment of a liquidator, receiver, manager, administrator or trustee;

(l) Order means a request by You to Us for the supply of Goods;

(m) PPSA means the Personal Property Securities Act 2009 (Cth);

(n) Price List means the price list issued by Us from time to time in the particular State or Territory in which an Order is placed;

(o) Quotation means the verbal or written estimate given by Us for the cost to supply specified Goods, and includes a Price List issued by Us from time to time;

(p) Small Business Contract has the meaning given to that term in the Australian Consumer Law;

(q) Special Building Products means the Goods, materials and/or products which are purchased, produced or supplied by Us in accordance with a particular design, drawing or specification that is requested by You;

(r) “We”, “Us” or “Our” means Stramit Corporation Pty Limited (ABN 57 005 010 195) and any subsidiaries, associated, related and parent companies or businesses, successors or assigns, including the businesses trading as ‘Stramit Building Products’, ‘Integrated Steel Solutions’, ‘Eziform Sheetmetal’ and ‘Taurean Door Systems’.

(s) You or Your means any individual, company, organisation or any other entity stated in the Contract to whom or to which We supply or offer to supply Goods under these Conditions, including any person, entity or agent acting on their behalf.

1.2 Headings are for convenience only and do not form part of these Conditions.

1.3 Reference to any legislation includes a modification, revision, amendment, re-enactment of, legislation enacted in substitution for, regulation, order-in-council or any other instrument from time to time issued, enacted or made under that legislation.

1.4 Reference to the singular includes the plural and the plural includes the singular.

1.5 The words include and including are not terms of limitation.

1.6 Terms and expressions used in these Conditions that are defined in the Australian Consumer Law, the GST Act or the PPSA have the same meanings respectively given to those terms and expressions in those Acts.

2. GENERAL MATTERS

2.1 The Contract constitutes the entire agreement for the sale and/or supply of Goods between the parties. All prior representations, trade custom or previous dealings between the parties are excluded and are not applicable in the interpretation of the Contract. In the event of any inconsistency with any other document including any Quotation, Order or other document You provide us, the terms of the Contract take priority and prevail.  

2.2 By placing an Order, or accepting delivery of Goods pursuant to any Order, You are deemed to have read, understood and accepted these Conditions as binding on You.

2.3 You agree to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause You or Us to breach or commit an offence under any Anti-Corruption Law.

2.4 We have no obligation to agree to provide or continue to provide any credit facilities to You. You are not entitled to any credit facilities until You receive notice from Us to that effect and We may at any time by notice to You reduce, vary or terminate any such credit facilities at Our discretion. Any credit limit that may apply from time to time in respect of credit facilities is for administrative convenience and solely for the benefit of Us and such credit limit does not constitute a term of these Conditions nor of any Deed of Guarantee, Indemnity and Charge in respect of Your obligations.

3. ORDERING AND SUPPLY OF GOODS

3.1 You may purchase Goods by placing an Order with Us verbally or in writing. An Order constitutes an offer by You to purchase Goods from Us pursuant to these Conditions.

3.2 We may accept or decline, in whole or in part, any Order by notifying You in writing or by delivering to You the Goods the subject of Your Order. The parties acknowledge and agree that acceptance of an Order gives rise to a Contract under these Conditions.

3.3 You may not withdraw, cancel or revoke an Order after acceptance without Our written consent.

3.4 No Quotation will constitute an offer to supply Goods to You. Any Quotation expires on the date stated or otherwise 30 days after the date the Quotation is issued. We reserve the right to vary or withdraw any Quotation before an Order is accepted.

3.5 You must obtain Our written consent if You wish to resell any Goods online.

4. PRICES, GST AND OTHER EXPENSES

4.1 Unless otherwise agreed in writing between the parties, the price payable for Goods is the price specified in Our invoice plus any duties, fees, taxes (including GST), delivery charges and levies charged or imposed by the Contract.

4.2 Unless otherwise expressly stated, all amounts payable by You for Goods are exclusive of GST.

4.3 If GST is imposed on any supply of Goods made in accordance with a Contract, You must pay to Us an additional amount equal to the GST payable on or for that taxable supply of Goods. Payment of any GST must be made at the same time as payment for the Goods.

5. PAYMENT AND CREDIT

5.1 Unless otherwise agreed between the parties, payment for Goods is to be made by You on or before the Due Date.

5.2 The parties acknowledge and agree that Our acceptance of an application for a Credit Account gives rise to a Contract under these Conditions.

5.3 You authorise Us to open a Credit Account in Your name listed on the application for a Credit Account and to debit the price of the Goods supplied to You and all other amounts owed by You to Us (including fees and interest payable under a Contract).

5.4 Any Credit Account granted by Us must only be used by You and cannot be assigned, transferred or made available for use by any other entity or person (including by a subsequent purchaser of You) without Our prior written consent.

5.5 If You are in default of any payment, We are entitled to:

(a) charge You a reasonable surcharge for processing payments made by credit card, at an amount advised by Us from time to time;

(b) charge You interest on all overdue accounts at a rate which is four (4) percent higher than the cash rate last published by the Reserve Bank of Australia as at the Due Date, calculated and payable daily and compounded from the due date until the invoice is paid in full. The parties agree that such interest charge is not a penalty;

(c) require the payment of Goods prior to delivery of any further Goods;

(d) demand that all of Our invoices issued to You but not yet due and all overdue invoices are immediately due and payable;

(e) charge You a reasonable fee where any payment is dishonoured or returned by Your financial provider (or where We are otherwise unable to process any payment from Your financial provider) at an amount advised by Us from time to time;

(f) preclude You from participating in any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until Your account is no longer overdue.

5.6 You agree to indemnify Us for:

(a) all reasonable legal costs and other expenses which are incurred by Us or are likely to be incurred by Us as a result of any breach, act or omission by You arising either directly or indirectly from or in connection with these Conditions including legal fees on a solicitor/client basis in the recovery or attempted recovery of any overdue amount for Goods;

(b) any stamp duty or other government rates, taxes (including GST) or charges levied on or in connection with the Credit Account, any Contract for the supply of Goods and any deed of guarantee, indemnity and charge; and

(c) all costs associated with the registration, maintenance and withdrawal of any Security Interest which secures Your obligations under any part of the Credit Account, Contract and these Conditions.

5.7 The parties acknowledge and agree that:

(a) We may apply any payment received from You towards any debt owed by You to Us;

(b) We may set-off any credit amount that We owe to You against any debt owed by You to Us; and

(c) You may not withhold payment of any money in respect of any set-off or claim You might have against us without Our prior written consent.

6. DELIVERY

6.1 We may make the Goods available for Your collection or deliver the Goods, including delivery by a third-party carrier and delivery by instalments. You will not be entitled to cancel the balance of an Order if We fail to deliver any instalment.

6.2 You authorise Us to deliver the Goods to the place nominated by You and to leave the Goods at such place whether or not any person is present to accept delivery. We are not obliged to obtain a signed receipt, signed delivery docket or other acknowledgement of the Goods from any person at the nominated place for delivery, but if such signature or acknowledgement is obtained from a person reasonably believed by Us to hold authority to sign for or otherwise take delivery of the Goods, then such signed receipt, signed delivery docket or other acknowledgement will be conclusive evidence of Your acceptance of the Goods delivered.

6.3 You must provide a suitable and safe area at the nominated delivery site to unload the Goods and ensure that Our (or Our agents, employees or contractors) use of the nominated delivery site is compliant with relevant work health and safety legislation.

6.4 All delivery times indicated by Us are estimates only and subject to the Goods being available and Our reasonable ability to make the delivery on that date. Failure to deliver within the specified time will not confer a right upon You to cancel or terminate Your Order or refuse to pay for the Goods.

6.5 Delivery of the Goods is deemed to occur when they are handed to You or Your representative, are delivered to the premises or site nominated by You, or are collected from Us by You or Your representative, whichever occurs first. We shall not be liable on any basis whatsoever for loss suffered by You after delivery of the Goods to You.

6.6 You agree to examine the Goods immediately after delivery.

6.7 You must pay and We reserve the right to charge You all costs and fees incurred as a result of:

(a) any delay in delivery of the Goods which is caused by You or the conditions of the nominated delivery site or the nature of the Goods being delivered;

(b) any unexpected labour or additional costs in connection with the delivery; and

(c) any permit or licence or other extraordinary costs of transporting or delivering Goods (including wide or long loads).

6.8 If You do not collect the Goods by the nominated collection date or we are unable to deliver the Goods to You, then We reserve the right to store the Goods or deliver the Goods to any nominated delivery site and charge You all costs of storage or delivery (as applicable) incurred by Us for such storage or delivery.

6.9 If You are collecting the Goods You acknowledge and agree that entry onto Our premises by You or Your agents, employees, contractors or other representatives is at Your/their own risk and We will not be liable for any loss, damage or injury caused by any act or omission whatsoever whilst on Our premises.

6.10 You agree to indemnify and hold Us harmless (or Our agents, employees or contractors) from any and all claims, loss and damage arising out of:

(a) delivery of the Goods (including any loss or damage caused by delivering the Goods to an unattended site and any loss or damage suffered by Us as a result of any property damage or personal injury caused by the delivery and unloading the Goods);

(b) Your or Your agent, employee, contractor or other representative’s attendance at Our premises; and

(c) Your failure to provide a safe, suitable and compliant nominated delivery site in accordance with Clause 3,

except to the extent that We (or Our agents, employees or contractors) have committed an act of negligence, breach of the law or breach of the Contract.

7. RISK, TITLE AND CHARGE

7.1 Unless otherwise agreed by the parties in writing, all risk in the Goods passes to You upon delivery or collection of the Goods.

7.2 Title to any Goods supplied by Us will not pass to You until all amounts owing by You on any account whatsoever have been received by Us.

7.3 Until title in the Goods passes to You, the Goods supplied are held by You for Us as bailee and You must store the Goods separately from Your own Goods and those of any other party in a manner which clearly identifies the Goods as Our property and which ensures the Goods do not become damaged or spoiled.

7.4 You may resell any Goods before title in the Goods passes to You, provided that You:

(a) resell any such Goods to a third party in the ordinary course of business;

(b) act in any such transaction as Our fiduciary agent;

(c) hold the proceeds of sale of any such Goods on trust for Us and in a separate account with separate records; and

(d) account to Us in respect of those proceeds or any other payment made by a third party for any sale of the Goods and allow us to inspect any records of any payments.

7.5 We may repossess any Goods (wherever they are located) if any amount due by You in respect of the Goods remains unpaid after the Due Date or where You suffer an Insolvency Event.

7.6 You irrevocably grant to Us or Our agents or any other nominated representative an unrestricted right and licence without notice to enter any premises occupied by You to identify and repossess any of the Goods without in any way being liable to You or any other third party.

7.7 You must insure the Goods, and keep the Goods insured, at Your own cost and expense at all times to the full extent of the price paid or payable for those Goods, including (but not limited to) between the time that risk in the Goods passes to You and the date that title in the Goods passes to You.

7.8 You must indemnify Us in full for any loss or damage occasioned to the Goods between the time that risk in the Goods passes to You and the time that title in the Goods passes to You.

7.9 To secure payment of all monies owed to Us by You for the sale or supply of Goods, You hereby:

(a) charge all of Your interest in real and personal property (including all property acquired after the date of the Contract) in favour of Us whether or not a demand has been made on You (“Charge”);

(b) authorise and consent to Us taking all actions necessary to give effect to the Charge, including the lodgement of a caveat upon any title of Your real property, whether held in Your own right or as trustee of any trust, or any other security document; and

(c) irrevocably appoint Us and any person nominated by Us severally as Your attorney, with power to execute, sign and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) such caveat or other security document to effect the Charge granted under this part.

8. APPLICATION OF THE PPSA

8.1 You acknowledge and agree that:

(a) these Conditions constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and creates a security interest in the Goods supplied by Us from time to time and any proceeds of the sale of the Goods to secure payment for the Goods (“Security Interest”);

(b) each sale or supply of Goods by Us under these Conditions is subject to the Security Agreement for the purposes of the PPSA; and

(c) We may lodge a financing statement on the Personal Property Securities Register (“PPSR”) in respect of the Security Interest in the Goods and the proceeds of the sale of the Goods, including as a purchase money security interest (as that term is defined in the PPSA) (“PMSI”), pursuant to these Conditions.

8.2 You must do all such things, provide all such information and sign all such documents as are necessary and reasonably required to enable Us to acquire a perfected Security Interest in the Goods.

8.3 You must not change Your name, change Your structure, status or partnership, or assign or sell Your business to another party, or initiate any change to any registered documentation, or act in any manner which would impact on our registered Security Interest without Our prior written consent. No such event shall affect Your liability under these Conditions, as You are named in any applications for credit, until a new application for credit made in Your new entity name as restructured or changed is received and approved by Us in writing.

8.4 To the extent permitted by law if the PPSA applies You irrevocably waive Your rights to:

(a) receive notices or statements under sections 95, 118, 121(4), 129, 130, 132(2), 132(4) or 135(2);

(b) redeem any products under section 142;

(c) reinstate any Contract under section 143; or

(d) receive a verification statement as defined in the PPSA.

8.5 If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).

8.6 You agree not to exercise Your rights to make any request of Us under section 275(6) of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.

8.7 The parties shall not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances where:

(a) disclosure is required by sections 275(7)(b) to (e) of the PPSA; and/or

(b) We disclose information of the kind mentioned in section 275(1) of the PPSA to the extent that We are not doing so in response to a request made by an "interested person" (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.

8.8 Notwithstanding Clause 10(a), You shall only authorise the disclosure of information for the purposes of section 275(7)(c) of the PPSA, or request information under section 275(7)(d) of the PPSA, if We approve such disclosure or request for information in writing.

8.9 Nothing in this part will prevent any disclosure of information by Us that We believe is reasonably necessary to comply with any other obligations that We may have under the PPSA.

8.10 If You default in the timely performance of any obligation owed to Us, We may enforce the Security Interest by exercising all or any of Our rights under these Conditions, the general law and the PPSA.

8.11 Nothing in this Clause 8 limits or is limited by any other provision of these Conditions or any other agreement between the parties.

9. BUILDING PRODUCTS AND MANUFACTURE

9.1 No sale under these Conditions constitutes a sale by sample, description or specification. You acknowledge and agree that:

(a) all samples, descriptions, illustrations and any other specification contained in any of Our Price List, product and service guide, catalogue or advertising material are approximate and may vary from the Goods sold, supplied or produced (within Australian Standards);

(b) You are liable for ensuring that the Goods are suitable for Your intended use; and

(c) We are not liable to You for any loss, damage, cost or expense suffered by You as a result of Your reliance upon any such description, illustration, specification or any other characteristic of a sample except to the extent that We have committed an act of negligence, breach of law or breach of a Contract.

9.2 We are not obliged to accept any materials supplied by You for the manufacture of any Special Building Products. If We do accept such materials on Your request then You acknowledge and agree that:

(a) We make no warranty or representation as to the quality, fitness for purpose or suitability of such materials supplied by You; and

(b) We are not liable for any failure, delay, loss or damage caused or in connection with any materials supplied by You or any Special Building Products which are manufactured from materials supplied by You.

9.3 Except where the Contract is a Consumer Contract or a Small Business Contract and to the extent permitted by law, You acknowledge and agree that:

(a) We will not be liable for any lack of fitness for purpose, property damage or personal injury caused by, or any other failure of Special Building Products;

(b) any skill, judgment, advice, recommendation, information or assistance provided by Us in relation to Special Building Products is so provided in good faith and You do not rely on such skill, judgment, advice, recommendation, information or assistance as to the suitability of any particular purpose of Special Building Products; and

(c) You will indemnify Us and hold Us harmless from any liability for any loss or damage caused to or suffered by You or any third party as a result of a Special Building Product.

9.4 We reserve the right to:

(a) charge You, or otherwise recover any cost We incur, for any testing or inspection of Special Building Products or Goods which are manufactured using materials supplied by You;

(b) charge You, or otherwise recover any cost We incur, for Our acquisition and/or use of any tool, equipment, pattern, design, system or any other device of manufacture (“Manufacturing Tools”) required to satisfy, complete or perform an Order made by You; and

(c) hire Manufacturing Tools to You on agreed terms.

9.5 You acknowledge and agree that any charges, costs, payment for charges or costs, or agreement for hire does not vest in You any right of title or intellectual property in the Manufacturing Tools and You may not use the Manufacturing Tools without Our prior written consent.

9.6 You agree to indemnify Us and hold Us harmless against any claim, demand or suit arising out of any loss, damage or personal injury caused to You, Your agents or employees or any other third party, by a Manufacturing Tool provided by Us except to the extent that We have committed an act of negligence, breach of law or breach of the Contract.

10. WARRANTIES AND LIMITATION OF LIABILITY

10.1 If You are a Consumer as that term is defined under the Australian Consumer Law, Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. The benefits provided to You under this Clause 10 are in addition to other rights and remedies available to You under the law.

10.2 You must notify Us of any claim in writing in accordance with the following terms:

(a) for any Goods that do not correspond with the applicable Order, within two (2) days of delivery or collection of those Goods;

(b) for any Goods which are allegedly defective or damaged, or any services which are allegedly deficient, within two (2) days of delivery/collection of those Goods or performance of the services (as applicable);

(c) for any disputed invoice, within fourteen (14) days of receiving that invoice; and

(d) You must take all steps necessary to mitigate any loss arising as a result of any defect in the Goods provided.

10.3 You acknowledge and agree that any failure by You to make a claim in accordance with the terms in Clause 2, or to mitigate any loss arising as a result of any defect, may result in Your deemed acceptance of the Goods (including any defects) in compliance with these Conditions.

10.4 To the extent permitted by the Australian Consumer Law and any other applicable law, all other conditions, guarantees or warranties (whether implied or otherwise) not set out in this Clause 10 are excluded. Nothing in this Clause 10 is to be interpreted as excluding, restricting or modifying any law or statute applicable to the supply of Goods which cannot be excluded, restricted or modified.

10.5 To the extent permitted by law, Our liability arising from the breach of such conditions, guarantees or warranties will (at Our option) be limited to and completely discharged in the case of Goods, either:

(a) the replacement or cost of replacement of the Goods; or

(b) the supply or cost of supply of equivalent Goods; or

(c) the repair or cost of repair of the Goods.

10.6 Except where the Contract is a Consumer Contract or Small Business Contract, You acknowledge and agree that We are not liable to You for:

(a) any indirect, special, economic or consequential loss, cost, damage or expense;

(b) any other loss of a kind which is reasonably beyond the normal measure suffered by someone in a like situation; and

(c) any loss of revenue, business profits, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation or any loss of value or intellectual property.

10.7 Except where the Contract is a Consumer Contract or a Small Business Contract, You agree to indemnify Us for any reasonable loss, cost, damage or expense suffered by Us arising from or in connection with:

(a) any breach of these Conditions and/or the Contract by You;

(b) any negligence committed by You under these Conditions and/or the Contract;

(c) any breach of law by You which is applicable under these Conditions and/or the Contract;

(d) the death or injury to any person or damage to any property arising from the performance by You of Your obligations under any Contract; and

(e) any failure to install the Goods in accordance with their applicable installation instructions and manuals provided with the Goods or to operate the Goods in accordance with their applicable operation instructions and manuals provided with the Goods or in connection with Your negligence or the negligence of any third party, including in relation to the installation or operation of the Goods.

10.8 To the extent permitted by law, We will not be liable to You for:

(a) any loss or damage incurred by you as a result of delay in the performance or non-performance of any of Our obligations under these Conditions which is caused by any Force Majeure Event or otherwise occasioned by any cause whatsoever that is beyond Our reasonable control;

(b) any defects caused by fair wear and tear of Goods; and

(c) any defect caused by Your failure to:

(i) install, assemble, handle and/or use Goods in accordance with relevant Australian Standards and standard building practices;

(ii) follow any instructions which we issue to You on sale or supply of the Goods; or

(iii) any other instructions for the installation, care and maintenance of Goods that We may issue to You or publish from time to time;

(d) any failure of materials supplied by You for the purpose of Special Building Products, or any Special Building Products which are manufactured using materials supplied by You; or

(e) the cost of removing defective Goods (whether installed or otherwise) or the cost of installing replacement Goods.

10.9 You agree to bear all costs and expenses associated with making any claim under the Australian Consumer Law, except where We agree that the Goods do not comply with the statutory guarantees provided in that Act, in which case We will refund Your reasonable cost of returning the Goods to Us.

11. RETURN OF GOODS

11.1 Unless otherwise agreed by Us in writing, We will not accept the return of Goods.

11.2 Where We agree to accept return of any Goods, You must provide Your proof of purchase for the Goods to be returned and We reserve the right to charge You reasonable restocking, disposal or repacking charges which may be incurred by Us as a result of the Goods being returned.

11.3 You acknowledge and agree that the following Goods cannot be returned:

(a) any Goods which are not in original or resaleable condition; or

(b) any Special Building Products, unless faulty. Any manufacturing surcharge for Special Building Products is non-refundable.

12. VARIATION AND DEFAULT

12.1 We may vary a Contract by notice in writing to You. If the Contract is a Consumer Contract or a Small Business Contract, then You may consider the variation and if not acceptable may elect not to proceed with the purchase of Goods ordered before the date of the variation but which are intended to be subject to the variation. If the Contract is not a Consumer Contract or a Small Business Contract, You agree that Goods delivered and services performed and/or ordered after the date of the notice of variation will be subject to the variation and acceptance of the Goods or services or the placing of the order will be deemed to be an acceptance of such varied terms and conditions.

12.2 The Contract (including these Conditions) may not be varied, altered or amended by You unless such variation, alteration or amendment is in writing and signed by or on behalf of Us.

12.3 We reserve the right in Our sole discretion to immediately:

(a) suspend or cancel delivery of Goods or any current Order(s) for the supply of Goods; and/or

(b) suspend or terminate Your Credit Account; and/or

(c) require immediate payment of the balance of any Credit Account, invoices or any other amounts due and payable whether or not the Due Date has expired; and/or

(d) register a default with any credit reporting agency, where applicable; and/or

(e) enforce Our rights under any Security Interest; and/or

(f) suspend or terminate the Contract;

where any of the following occurs:

(g) any amounts payable for Goods remain unpaid after the Due Date; and/or

(h) You exceed the limit of Your Credit Account; and/or

(i) You breach a material term of the Contract; and/or

(j) either of the parties suffer a Force Majeure Event which delays or prevents performance of the whole or any part of the Contract; and/or

(k) You suffer an Insolvency Event; and/or

(l) You allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against Your property including under the PPSA; and/or

(m) any other circumstances where We are of the reasonable opinion that You are unable to pay Your debts as and when they fall due and payable or You have suffered a material adverse change in Your financial circumstances.

12.4 You are entitled to immediately terminate or suspend the whole or any part of the Contract, or Your Credit Account, where:

(a) the Contract is a Consumer Contract or Small Business Contract; and

(b) We suffer an Insolvency Event and/or suffer a Force Majeure Event which delays or prevents performance of the whole or any part of the Contract and/or We commit a breach of a material term of the Contract.

12.5 You acknowledge and agree that on termination of the Contract We may recover from You the reasonable cost of materials or Goods acquired for the purpose of future Orders, delivery or supply of Goods to You.

13. NOTICES

13.1 Notices to be given by You to Us may be delivered personally or sent to the National Credit Manager at Our address at [insert] or sent by email to [email address] and unless the contrary is proved the notice will be taken as delivered in the case of mail: on the fourth business day following posting and in the case of email: immediately provided no notification of sending error is received by You.

13.2 Notices to be given by Us to You may be delivered personally or sent by prepaid post to Your last known address or sent by email to Your last known email address and unless the contrary is proved the notice will be taken as delivered, in the case of mail: on the fourth business day following posting and in the case of email: immediately provided no notification of sending error is received by Us. Invoices and statements are deemed to be received by You on the third business day after posting.

14. GOVERNING LAW

14.1 Each Contract will be governed by and construed according to the laws of the State or Territory of the place of delivery of the Goods and the parties submit to the exclusive jurisdiction of the courts of that State or Territory.

15. SEVERANCE, TRANSFER AND WAIVER

15.1 If any part of these Conditions (including any provision, part, paragraph, phrase or word) is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation. If that is not possible, it will be severed from these Conditions without affecting the remaining provisions of these Conditions (which will remain in full force and effect).

15.2 Obligations and rights under these Conditions cannot be assigned or transferred to any third party without Our written consent.

15.3 The failure, delay or partial exercise of a party in exercising any right or remedy, or the granting of any indulgence by a party in favour of the other, under these Conditions does not prohibit, affect or constitute a waiver of the parties’ rights and remedies against each other under these Conditions.

16.  PRIVACY

16.1 You acknowledge and agree that We may collect personal information and credit information about You and Your directors, officers, partners and the Guarantors (each a “Relevant Party”).

16.1 You warrant to Us that You have obtained the consent of each of the Relevant Parties to the collection, use and disclosure of their personal information and credit information by Us in accordance with this Clause 16 and Our Privacy Policy.

16.3 Our Privacy Policy, Credit Reporting Policy and Statement of Notifiable Matters available on our website at stramit.com.au/privacy-policy or upon request to Us, forms part of these Conditions.

16.4 Our website may be hosted, or some data may be stored, overseas. All personal information and credit information derived from Australia will still be treated in accordance with Our Privacy Policy while being stored overseas.

16.5 If We are unable to obtain all Your required personal and credit information, or if You do not provide all of the information that We request, We may reject or delay Your Credit Account application (including any application of a third party such as a guarantor), cease Our commercial relationship with You or choose not to provide You with Goods.

17. ELECTRONIC EXECUTION

17.1 Each party consents and agrees that this agreement may be executed and delivered:

(a) by any and all parties by way of electronic signature; and

(b) by email or other electronic means and this has the same force and affect as delivery of an original document with original signatures.

17.2  If this agreement is executed by any party by way of electronic signature it must be considered an original and each party consents and agrees to be legally bound by this agreement’s terms and conditions. Each party agrees that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of its electronic signature or any resulting contract between the parties.

17.3 Each party must do all things and execute all documents necessary to give full effect to this agreement.

The conditions of purchase set out below (Conditions), as amended from time to time, apply to Orders issued for Goods and/or Services to any company, person or other party (Supplier) by Stramit Corporation Pty Limited ABN 57 005 010 195 and/or its subsidiaries including Morinda Australia  Pty Ltd ABN 34 082 051 287, FBHS (AUST) Pty Ltd ABN 83 126 232 504, FBSOL Pty Ltd ABN 75 147 653 825 and S Cubed Pty Ltd ABN 73 147 653 816 (each a Purchaser) where there is no other written agreement between the Supplier and the Purchaser.

The Purchaser is not bound by the Supplier’s terms of sale or any other conditions the Supplier seeks to impose on, or that purport to apply to, the supply of the Goods and/or Services by the Supplier to the Purchaser.  The parties must not amend these Conditions unless recorded in writing and signed by the Purchaser.

These terms and conditions take effect on and from 15th June 2020 (Effective Date).

1. DEFINITIONS

In these terms and conditions, unless the context requires otherwise:

Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which the Purchaser carries on business;

Business Day means a day (other than Saturday or Sunday) on which registered banks are open for business in Sydney, NSW but excludes any day in the period from 24 December in any year to 5 January (both inclusive) in the following year;

Contract means an agreement between the Purchaser and Supplier for the supply of Goods and/or Services constituted by an Order, these Conditions and any variation agreed in writing between the Purchaser and the Supplier;

Fletcher Building Group means the group of companies comprised of any wholly or partially owned subsidiary of Fletcher Building Limited, wherever incorporated;

Goods means the goods and any ancillary or associated services (including delivery) described in the Order, if any;

Modern Slavery Law means:

(a)  the Modern Slavery Act 2018 (Cth) and any law, rule or other legally binding measure of any jurisdiction that creates similar reporting obligations to those set out in the Modern Slavery Act 2018 (Cth); and

(b)  Divisions 270 and 271 of the Commonwealth Criminal Code (as defined in the Criminal Code Act 1995 (Cth)), the Modern Slavery Act 2018 (NSW), and any law, rule or other legally binding measure of any jurisdiction that creates similar offences to those set out in Divisions 270 and 271 of the Commonwealth Criminal Code.

Order means the Purchaser’s purchase order placed or communicated with the Supplier and includes these Conditions;

Price means the price for the Goods and/or Services as calculated in accordance with clause 3;

Road Transport Legislation includes the chain of responsibility laws that apply to the services where they are provided including (without limitation and where applicable) the Heavy Vehicle National Law and all regulations made under it, the Road Traffic (Vehicles) Act 2012 (WA) and Road Traffic (Administration) Act 2008 (WA), the Road Transport Act 2013 (NSW), the Road Safety Act 1986 (Vic), the Transport Operations (Road Use Management) Act 1995 (Qld) and any other comparable legislation in other states or territories where the services are provided, and any regulations made under these Acts;

Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth);

Services means the services described in the Order, if any;

In these terms and conditions: 

(a) words in singular will include the plural and vice versa;

(b) any reference to “including” means “including without limitation”;

(c) a reference to a statute includes all regulations under and amendments to that statute and any statute to the extent passed in substitution for that statute;

(d) if any matter requires agreement between the parties, such agreement must be express and in writing and must be at the absolute discretion of each party;

(e) headings used do not form part of the Conditions and are for convenience only.

Specifications means any technical or other specification relating to the Goods and/or Services referred to in the Order or otherwise provided in writing by the Purchaser to the Supplier;

Supplier Code of Conduct means the code of conduct available at www.fbu.com.   

2. TERMS OF AGREEMENT

2.1 Contract: The Contract between the Purchaser and the Supplier for the purchase of Goods and/or Services by the Purchaser from the Supplier comprises:
(a) these Conditions;

(b) any other terms and conditions set out in or incorporated by reference in the Order; and

(c) any other terms and conditions which are imposed by law and which cannot be excluded.

In the event of a conflict between these Conditions and the Order, the Order will prevail.

2.2 Entire Agreement:  These Conditions, together with the documents referred to in clause 2.1, will apply to all orders for the purchase of Goods and/or Services by the Purchaser from the Supplier, and contain the only terms and conditions of purchase to which the Purchaser will be bound in connection with the purchase of Goods and/or Services from the Supplier.  The Purchaser will not be bound by any other terms the Supplier may purport to apply (including on an invoice or other document and whether before or after submission of an Order by the Purchaser) or which are endorsed upon any correspondence or documents issued by the Purchaser, except to the extent that the Purchaser and the Supplier enter into a final, signed agreement relating to the provision of Goods and/or Services by the Supplier to the Purchaser in which case that final, signed agreement will take effect to the exclusion of these Conditions.

2.3 Acceptance:  Without limiting any other mode of acceptance of this Contract exercised by the Supplier, the Supplier acknowledges that by delivering the Goods or performing the Services, the Supplier by such conduct agrees to be bound by these Conditions.

2.4 Amendment:  The Purchaser may change these Conditions from time to time.  These Conditions and any changes to them will be shown on the website www.stramit.com.au, together with the date on which any new terms and conditions become effective.  The Supplier must check this website before entering into a new Contract.  By entering into a Contract after the date upon which the new terms and conditions become effective, the Supplier accepts and is bound by the changed terms and conditions for that Contract and future Contracts.  If the Supplier does not accept the changes to the Conditions, the Supplier may give notice to the Purchaser that it does not wish to supply any further Goods and/or Services.

3. PRICE

3.1 Price of Goods and/or Services supplied:  The Price of the Goods and/or Services will be as set out in the Order.  If no Price is specified in the Order, then the Supplier must confirm the Price with the Purchaser before the supply of the Goods or before commencing the Services.  The Purchaser will not be bound to pay for the Goods and/or Services unless the Purchaser has agreed to the Price in writing before the Goods are supplied or the Services are performed.  The Price set out in the Order or agreed between the Supplier and the Purchaser for a Contract may not be amended without the prior written agreement of the Purchaser. 

3.2 Price: The Purchaser will pay the Price for the Goods and/or Services.  The Price is exclusive of GST but includes all other taxes or duties levied or assessed in connection with the supply of the Goods and/or Services and includes all costs of testing, inspection, labelling, packing and freight and delivery to and off-loading (if required) at the destination as specified in the Order.  If the Purchaser agrees to pay freight and the cost of delivery has not been referenced on the original Purchase Order issued by the Purchaser, the Purchaser will issue an amended Order to the Supplier prior to payment for any freight charges. The Supplier agrees that it will not be entitled to any other payments or reimbursements in respect of the Goods and/or Services.

3.3 No less favourable: The Supplier warrants that the Price is no less favourable than the price paid by any other purchaser of the same Goods and/or Services supplied by the Supplier in substantially similar volumes or circumstances.

3.4 No admission: The Supplier acknowledges that any payment made to it by the Purchaser does not imply or constitute an admission on the part of the Purchaser that the Goods and/or Services comply with the Contract or a waiver or release of the Supplier's obligations under the Contract.

4. INVOICES AND PAYMENT

4.1 Invoices:  The Supplier will submit monthly GST invoices to the Purchaser, which invoices will be received by the Purchaser no later than the 5th of each month in respect of Goods and/or Services supplied during the preceding month to the Purchaser.  All invoices must specify the amount payable, state the relevant Order number or numbers, and include reasonable detail of the Goods and/or Services supplied during the relevant period.

4.2 Proof of Insurances Required: The Purchaser will not be required to pay the Supplier’s invoices where the Supplier has not provided the Purchaser with all proof of insurances required under these Conditions.

4.3 Payment Terms:  Unless otherwise agreed to in writing, the Purchaser will pay invoices for Goods and/or Services supplied by the Supplier to the Purchaser 45 days from the end of the month in which the Purchaser received a correctly tendered invoice (unless otherwise agreed in writing between the parties), provided that the Goods and/or Services have been received by the Purchaser at the date of the invoice.  If the Purchaser disputes any amount of an invoice, the Purchaser will pay the non-disputed amount of the invoice on the due date for the invoice.  Payment will be made by direct credit to a bank account nominated by the Supplier.

4.4 Set Off:  The Purchaser may set off any sums due to the Supplier against any costs, expenses or other losses (whether direct or indirect) incurred by the Purchaser as a result of any breach of the Contract or any other Contract between the Supplier and the Purchaser or any other Contract between the Supplier and any other member of the Fletcher Building Group and any losses sustained as a result.

5. PURCHASE OF GOODS AND/OR SERVICES

5.1 Quotes:  A request for quotation by the Purchaser will not constitute an offer to purchase Goods and/or Services from the Supplier.  No contract for the supply of Goods and/or Services will exist between the Purchaser and Supplier until the Purchaser gives the Supplier an Order in accordance with these Conditions and that Order has been accepted by the Supplier (such acceptance of the Purchaser's Order may be made and communicated by the Supplier in writing (including via email) including an order acknowledgment or by overt act of acceptance). 

5.2 Orders: The Purchaser may purchase Goods and/or Services from the Supplier by providing to the Supplier an Order.  The date for delivery of the Goods and/or Services will be as specified in the Order.

5.3 Cancellations or Variations: The Purchaser may cancel, or vary, an Order if the Purchaser has provided notice of such cancellation, or variation, to the Supplier at least 10 Business Days prior to the time specified for delivery in such Order and the Supplier has not delivered the Goods and/or Services in accordance with the Contract.

5.4 No Exclusivity or Minimum Quantities:  The Supplier acknowledges that the Purchaser may purchase Goods and/or Services from other suppliers, and there is no guarantee of exclusivity or minimum quantity.

6. DELIVERY

6.1 Delivery:  Unless otherwise agreed with the Purchaser, the Supplier must deliver the Goods to or perform the Services at the address specified in the Order by the date stated in the Order.  Time is of the essence. 

6.2 Packing:  The Supplier must ensure that all Goods and/or Services are properly and securely packed and where not specified in the Order packaging will be in a manner appropriate to the Goods and/or Services and the distance to be travelled.

6.3 Documents:  The Supplier must quote the Order number and the item number (if applicable) on all documents and packages sent by it to the Purchaser in respect of the Order.  On delivery of each consignment of the Goods and/or at the conclusion of the performance of the Services, the Supplier must deliver to the Purchaser such documents as are required by the Order, including, without limitation, customs export documents (if applicable), advice notes, certificates of conformity, and if the Supplier is not the original manufacturer of the Goods, copies of the original manufacturer’s certificate of conformity together with test figures, etc, where applicable.

6.4 Delivery Notice:  Where the Supplier becomes aware that it will not be able to comply with a specified delivery date as shown on an Order, the Supplier will immediately notify the Purchaser and obtain approval for any change to the original delivery date. If approval is not obtained, the Supplier will use, and be responsible for, any express freight that may be required to guarantee that the product is delivered into the delivery address to meet the required delivery date or the agreed lead-time.  In the event that delivery is delayed by more than twenty- four (24) hours, the Purchaser will be entitled to cancel the order or reject the delivery without any liability whatsoever.

6.5 Liability for Late Delivery:  The Purchaser will be entitled to recover from the Supplier as a debt due and payable by the Supplier to the Purchaser, any costs, expenses or liquidated damages suffered by the Purchaser as a result of the Supplier failing to satisfactorily complete delivery within the agreed timeframe. 

7. RECEIVING GOODS AND/OR SERVICES

7.1 Making Claims: The Purchaser reserves the right to make claims upon the Supplier for any goods and/or Services which are at the time of delivery or performance, not fit for purpose, not to specification, damaged, defective, short delivered and/or incomplete.

7.2 Packaged Goods:  The Supplier accepts that the contents of Supplier factory packaged goods may not be checked by the Purchaser at time of receipt but will be checked at time of installation. Claims for damaged and/or defective goods, items short delivered and/or incomplete goods may be made at that time.

7.3 End Customer Claims:  The Supplier also accepts that claims may be made by the Purchaser for defects at any time within a reasonable period of the end customer becoming aware of such defects.

8. TITLE AND RISK

8.1 Title:  Title in the Goods and/or Services passes to the Purchaser on delivery or as stipulated in the Order.

8.2 Risk:  The Supplier bears all risk of loss and damage to the Goods and/or Services until the Goods and/or Services have been accepted in accordance with clause 8.3.

8.3 Acceptance:  Where acceptance tests are required for Goods and/or Services and are set out in an Order, acceptance of the Goods and/or Services delivered will be subject to completion of the acceptance tests by the Purchaser.  Where no acceptance tests are required, the Purchaser will have the right to inspect the Goods and/or Services after delivery and acceptance will take place if the Goods and/or Services are satisfactory to the Purchaser on inspection, or, if no inspection is made, the Goods and/or Services will be accepted on the earlier of (a) when they have been taken into final and beneficial use by the Purchaser or (b) twenty eight (28) days after delivery.

If the Purchaser is not satisfied that the Goods and/or Services are delivered in accordance with the Order, the Purchaser may in its absolute discretion (without limiting any other rights or remedies available to the Purchaser):

(a) reject them in whole or in part with no further liability to pay for the Goods and/or Services.  Any sums paid will be returned to the Purchaser on demand within ten (10) days of rejection; and/or

(b) give notice to the Supplier to repair or replace the Goods and/or Services without delay at the Supplier’s expense and risk.

Title and risk in the rejected Goods and/or Services immediately re-vests in the Supplier.  The Supplier is liable for all loss incurred by the Purchaser due to the rejection of the Goods and/or Services.  The Supplier must, at its cost, remove from the rejected Goods and/or Services any of the Purchaser's intellectual property (including names, logos, etc) or any other distinguishing features such as name or symbols.

8.4 No Waiver:  The Purchaser’s acceptance does not limit or waive the Purchaser’s rights to claim from the Supplier for any defect in the Goods and/or Services or failure of the Goods and/or Services to comply with the warranties, requirements or Conditions of the Order. 

8.5 No Security Interests:  Nothing in the Contract creates a Security Interest in the Goods for the Supplier.  The Supplier must not, in any circumstances, register or seek to register an interest in the Goods under the Personal Property Securities Act 2009 (Cth).

9. GST

9.1 Defined Terms: Any expression used in this clause or clause 3 and which is defined in the A New Tax System, (Goods and Services Tax) Act 1999 (Cth) has the same meaning in clause 3 and this clause 9.

9.2 GST Exclusive: With the exception of any amount payable under this clause 9, unless otherwise expressly stated, all amounts stated to be payable by the Purchaser in these Conditions are exclusive of GST.

9.3 Tax Invoices: If GST is imposed on any supply made under or in accordance with these Conditions, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply.  Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with these Conditions, subject to the provision of a tax invoice by the supplier to the recipient.

9.4 GST Registered: If the Supplier is registered for GST it must raise and provide to the Purchaser GST compliant Tax Invoices and Adjustment Notes (accounts) in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth) and as interpreted by GST Rulings and Determinations made by the ATO.

9.5 Not GST Registered: If the Supplier is not registered for GST, it agrees to include its ABN on all invoices and credit notes.  Failure by the Supplier to quote its ABN on its invoices may result in the Purchaser withholding part payment at the top marginal tax rate (plus Medicare Levy) of the total invoice value and remitting this to the ATO as per legislated taxation requirements (PAYG system).

10. SUPPLIER WARRANTIES AND INSURANCES

10.1 Goods Warranties:  Where the Supplier supplies Goods, the Supplier warrants and undertakes that the Goods:

(a) are new and unused;

(b) are of acceptable quality and fit for expected use and purpose, fit for sale to the end customer and fit for any purpose held out by the Supplier or made known to the Supplier in writing at the time the Order is placed or where no purpose is made known, the Goods are fit for the purpose for which such Goods are ordinarily used;

(c) are free from defects in design, material and workmanship;

(d) are of sound design;

(e) are in accordance with the relevant Australian Standards;

(f) will be labelled, marked and packaged in accordance with all applicable laws, and not misbranded or mislabelled;

(g) not be subject to any mortgage, charge, lien, encumbrance, retention of title or other security interest;

(h) are safe, not a risk to human health and not emit or contain any contaminant or hazardous substance;

(i) are free from encumbrances;

(j) will meet the requirements of the Order, including all Specifications contained in the Order or otherwise communicated to the Supplier;

(k) comply with all laws and regulations in the place where the Purchaser is located;

(l) include appropriate and correct warning and instructions; and

(m) comply with any representations, descriptions, samples or other specifications provided by the Supplier in connection with the Goods and/or Services, including as to quality, function, performance or design.

10.2 Services Warranties: Where the Supplier supplies Services, the Supplier warrants and undertakes that:

(a) the Supplier will, and will ensure that its employees and all representatives will, perform the Services in an efficient, proper, and professional manner, in accordance with all applicable law in the place where the Purchaser is located;

(b) any representations, whether oral or in writing, that the Supplier has made to the Purchaser as to the Supplier’s qualifications, experience, capacity to provide the Services and any other relevant matter are true and complete;

(c) the Supplier will supply all materials, equipment and machinery (as applicable) necessary for the provision of the Services, and will ensure that all such materials, equipment and machinery are fit for their intended purpose and comply with all applicable law in the place where the Purchaser is located;

(d) the Supplier and each of its employees and representatives will not use any of the Purchaser’s equipment unless the Purchaser specifically approves such use (which will be solely at the Purchaser’s discretion);

(e) the Supplier will maintain all licences, consents and permits required for the performance of the Services; and

(f) the Supplier, at the Supplier’s own cost, shall make good any errors, defects or omissions in the Services provided to the Purchaser.

The Supplier will perform the Services at the location set out in the Order or as notified to the Supplier by the Purchaser from time to time, as applicable.

10.3 Supplier Warranties:  The Supplier represents and warrants to the Purchaser, on the date of this Agreement and on a continuing basis, that:

(a) the Supplier holds all consents, approvals, permits and licences necessary for the manufacture (if applicable), storage and/or supply of the Goods and/or performance of the Services;

(b) any intellectual property rights or other proprietary rights of any other person will not be infringed by the provision of the Services, the supply of the Goods or the Purchaser’s on-sale or use of the Goods;

(c) the Supplier has the necessary resources (including financial resources) sufficient to enable it to perform its obligations under this Contract;

(d) the Supplier complies with all applicable laws and regulations including the Modern Slavery Law; and

(e) the Supplier and its suppliers have, hold and can demonstrate the attributes set out in the Supplier Code of Conduct.

10.4 Noncompliance Notice:  The Supplier must promptly notify the Purchaser in writing if any warranty in clause 10.3 changes.

10.5 Accreditation & Markings:  All Goods and/or Services which are classified by Standards Australia must be accredited to the relevant standard and carry the current Standards Australia mark or watermark and license number.  Goods must also be marked with Supplier identification.

10.6 Consumer Guarantees:  Where the Purchaser onsells the Goods to a consumer, the Supplier will be liable for all claims, costs, losses or damages that the Purchaser may be responsible for to the consumer under applicable consumer guarantees law in respect of those Goods.

10.7 No limitation:  The warranties provided in clauses 10.1, 10.2 and 10.3 are in addition to any obligations that the Supplier owes to the Purchaser that are implied by law, trade, usage or otherwise.  The provisions of this clause 10 will survive termination of the Order and/or Contract, howsoever arising.

10.8 Insurance:  The Supplier warrants that it holds and will maintain:

(a) public and products liability insurance in relation to all supplies to the Purchaser with a reputable insurer for an amount not less than $20,000,000 in respect of any one claim; and

(b) transit insurance for not less than the full replacement value of the Goods and/or Services. 

The Supplier agrees to provide copies of current certificates of currency for the public and products liability insurance referred to in this clause when requested by the Purchaser, detailing the policy number, expiry date and the amount of insurance cover.

11. PRODUCT LIABILITY

11.1 Supplier Indemnity: The Supplier hereby indemnifies the Purchaser for any loss, costs, damages, expenses and injury to property or persons resulting from, arising out of or in connection with a breach by the Supplier of the Contract or an Order or any breach by the Supplier of any applicable law and/or any use or resupply by the Purchaser of the Goods (including breach of the quality warranties set out in clause 10).  In the event that a warranty claim requires the Purchaser or a customer of the Purchaser to repair, replace or reinstall the Goods, the Supplier agrees that all costs relating to or arising out of the required work or replacement will be at the Supplier’s expense.

11.2 Warranty Claims:  In the event of a warranty claim by the Purchaser or a customer of the Purchaser, the Supplier agrees, where possible, to inspect the site of the installation within twenty-four (24) hours of the Supplier being notified of the warranty claim.  The Supplier also agrees to respond with a written report to the customer and the Purchaser within five (5) Business Days of the warranty claim notifying the Purchaser and the customer of the Supplier’s decision in relation to the warranty claim.

The Purchaser may, at its option or if requested by the Supplier, inspect the site of the installation of the Goods that are the subject of a warranty claim.  The Supplier agrees to reimburse the Purchaser for the Purchaser’s reasonable costs for conducting such inspection.

12. AUSTRALIAN CONSUMER LAW

12.1 Compliance Essential:  It is an essential term of these Conditions that the Supplier complies with the provisions of the Australian Consumer Law.  Without limiting that obligation in any way, the Supplier must comply (and ensure that any manufacturer or other supplier complies) with Section 102 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) and Regulation 90 of the Competition and Consumer Regulations 2010 (Cth), in relation to any warranty provided by the Supplier, any third party supplier, or the manufacturer of the Goods.  To the extent permitted by law, the Supplier indemnifies, and keeps the Purchaser indemnified against any loss, cost, penalty or claim made against the Purchaser that arises out of or relates to a breach of this clause by the Supplier.

13. SUPPLIER RESPONSIBILITIES

13.1 Compliance with the Order:  The Supplier will provide the Goods to and/or perform the Services for the Purchaser in accordance with the Order.

13.1 Health, Safety and Environment:  The Supplier will:

(a) at all times comply with all directions and applicable laws in the place where the Purchaser is located, including but not limited to those directions, laws and regulations relating to health, safety and environment which are relevant to any of the Goods and/or Services;

(b) not provide any Goods and/or Services which are intrinsically hazardous to life or harmful to the environment without appropriate arrangements being agreed with the Purchaser in advance in writing;

(c) ensure that waste and surplus materials arising from the provision of the Goods and/or Services are disposed of appropriately;

(d) notify the Purchaser as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Goods and/or Services in which the Purchaser will have an interest and must provide the Purchaser on demand with copies of any reports, documents or other material in relation to those safety hazards or issues.

13.2 Employees and contractors:  The Supplier will at all times be responsible for its employees, agents and sub-contractors and will ensure that they, when on the Purchaser’s site (or the Purchaser’s customer’s site), are made aware of and comply with rules, regulations and requirements of that site, copies of which will be provided by the relevant site manager.  The Purchaser will have the right to refuse access to its site to any of the Supplier’s employees, agents and sub-contractors who, in the reasonable opinion of the Purchaser, is not a fit and proper person to have access to the site, or who refuses to comply with the site rules.

13.3 Ethics: The Supplier undertakes it will not:

(a) induce any employee, agent or sub-contractor to the Purchaser to make any concession to or confer any benefit on the Supplier, or to refrain or withhold from doing anything in connection with the Order in return for any gift, money, benefit or other inducement; or

(b) encourage or facilitate an employee, agent or sub-contractor of the Purchaser to commit any act of dishonesty against the Purchaser which may benefit the employee, agent or subcontractor of the Purchaser or be a detriment to the Purchaser, or both.

14. ROAD TRANSPORT LEGISLATION

14.1 Supplier Obligations:  The Supplier must:

(a) comply, and ensure that all of its employees, workers, agents and subcontractors comply with all laws that apply to the transport of goods by road including but not limited to mass, loading, dimension, fatigue management requirements and speed compliance requirements of the Road Transport Legislation;

(b) establish, implement and maintain appropriate policies, procedures and business practices to ensure its business practices comply with the requirements of the Road Transport Legislation.

15. CONFIDENTIALITY AND INFORMATION

15.1 Confidentiality:  The Supplier agrees to keep confidential all of the Purchaser’s information concerning or arising from the performance of the Order or otherwise provided by the Purchaser to the Supplier.  This clause does not apply to information which is lawfully obtained from a third party who does not owe an obligation of confidentiality to the Purchaser, is public knowledge, is already known or is otherwise independently developed by the Supplier. 

15.2 No advertisement: The Supplier will not advertise itself as supplying goods and/or services to the Purchaser without the Purchaser’s prior written consent.  The obligations of this clause 14 will remain in force notwithstanding completion, cancellation or termination of the Order. 

15.3 Ownership of information: All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by the Purchaser, shall be the Purchaser’s exclusive property, and shall be used by the Supplier only in performance of the Order. Such property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon the Purchaser’s request, shall be returned to the Purchaser in good condition, normal wear and tear accepted.

15.4 Damages not adequate remedy: The Supplier acknowledges that damages may not be an adequate remedy for any breach of this clause and that the Purchaser may be entitled to equitable relief for any actual or threatened breach of this clause.

16. TERMINATION

16.1 Termination for Convenience: The Purchaser may, at any time, terminate an Order, or this Contract, in whole or in part, without cause, upon written notice to the Supplier. Following any such termination the Supplier must, to the extent specified by the Purchaser, stop all work on the Order, and cause its suppliers and subcontractors to stop work. Any costs for any such termination of the Order or Contract will be limited to actual non-recoverable costs incurred by the Supplier for the relevant Order which the Supplier can demonstrate were properly incurred prior to the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services.

16.2 Material Breach: A material breach by the Supplier of any of the terms of these Conditions will constitute an event of default. On the occurrence of an event of default the Purchaser may (without prejudice to any other remedy available to it) in its absolute discretion immediately terminate the Contract (including the Order) by giving written notice to the Supplier. 

16.3 Default:  Without limiting the foregoing, the Purchaser may terminate the Contract or an Order pursuant to this clause, in whole or in part, if the Supplier:

(a) fails to make delivery of the Goods and/or perform the Services within the time specified in the Order;

(b) fails to replace defective Goods and/or re-perform the Services in accordance with these Conditions;

(c) fails to comply with any other terms specified in the Contract;

(d) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit of creditors; or

(e) fails to maintain the warranty set out in clause 10.3(e) regarding the Supplier Code of Conduct.

17. GENERAL

17.1 No assignment, subcontracting or advertising:  The Supplier must not assign or subcontract its rights or obligations under the Contract without the Purchaser’s prior written consent.

17.2 Relationship:  The Supplier acknowledges that it is not the legal representative, agent, joint venturer or partner of the Purchaser for any purpose and it has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, for or on behalf of the Purchaser or to bind the Purchaser in any respect.

17.3 Waiver:  No waiver of any breach of, or failure to enforce any provision of, the Contract by any party will in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Contract.

17.4 Governing Law:  The Contract will be governed by and construed in accordance with the laws of New South Wales.  The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

17.5 Notice to Stramit: Notice to be given by the Supplier to the Purchaser may be delivered personally or sent by electronic transmission to the Purchaser at the following address:

Stramit Corporation Pty Limited
Level 4, 68 Waterloo Road
Macquarie Park NSW 2113
procurement.stramit@stramit.com.au

and unless the contrary is proved will be taken as delivered on the sixth Business Day following posting.  Invoices and statements are deemed received by the Purchaser on the sixth Business Day after posting by ordinary prepaid post.

17.6 Notice to Supplier: Notice to be given to the Supplier by the Purchaser may be delivered personally or sent to the last address supplied by the Supplier and unless the contrary is proved will be taken as delivered on the sixth Business Day following posting. 

17.7 Severance: In the event that the whole or any part or parts of any provisions in the Contract should be held to be void or unenforceable in whole or in part such provision or part thereof will to that extent be severed from that Contract but the validity and enforceability of the remainder of that Contract will not be affected.

17.8 Waiver: A party to the Contract may waive any term of the Contract at any time and will notify the other party in writing of any waiver.

17.9 Consequential Loss: Despite any other provision of these Conditions, neither party is liable to the other for any loss of profit, loss of revenue, loss of use, loss of business, loss of opportunity, loss of goodwill, loss of production or business interruption or any kind of indirect, special or consequential loss or damage.

17.10 Indemnities: Each indemnity provided under the Contract requires the Purchaser to mitigate its loss and the Supplier’s liability will be reduced to the extent any loss or damage arises from or is in connection with any act or omission of a person other than the Supplier. 

17.11 Privity: Where any provision of this Agreement is expressed to be for the benefit of any person other than either party, such provision is intended to confer a benefit on such person, enforceable at the suit of that person.

17.12 ESG Reporting: If requested by the Purchaser, the Supplier must, at its cost, provide any environmental, social and governance information relating to the performance of this agreement to enable the Purchaser’s parent company to meet the corporate governance requirements imposed on it by the ASX and NZX security listing rules or the Task Force on Climate-related Financial Disclosures from time to time.

17.13 Information and Access: The Supplier must allow the Purchaser to conduct a review or audit of the Supplier’s compliance with the Supplier’s warranties and obligations under this Agreement. The Purchaser must provide all such assistance and information as the Purchaser reasonably requests in connection with any such review and audit.

18. ANTI-CORRUPTION

18.1 Compliance: The Supplier and Purchaser agree to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause it or the other party to breach, or commit an offence under, any Anti-Corruption Laws. 

18.2 Supplier Warranty: The Supplier warrants and represents that it has not been convicted of any offence and has not been the subject of any investigation or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence, under Anti-Corruption Laws.