Savannah Bio Systems Pty Ltd
Terms & Conditions of Trade
“Company” means Savannah Bio Systems Pty Ltd ABN 77 006 594 369
“Customer” means any person, firm, company, trust, partnership, government body or other entity which the Company contracts to supply goods or services.
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ORDERS
1.1 All orders for goods or services that are placed with the Company by the Customer, and which are accepted by the Company, are placed and accepted on the terms and conditions set out in this document (“Conditions”).
1.2 The placement of an order by the Customer with the Company constitutes acceptance by the Customer of these Conditions to the exclusion of any other terms or conditions asserted by the Customer in any purchase order, sales confirmation or other document or communication from the Customer. The only terms or conditions binding on the Company in relation to the supply of goods or services to the Customer are these Conditions, terms or conditions of purchase that are expressly agreed to by the Company in writing, and any Non-excludable Obligations.
1.3 No order accepted by the Company (in writing, orally or by conduct) may be cancelled, deferred or varied by the Customer without the prior written consent of the Company, which may be given or withheld in the Company’s absolute discretion. The Company may give its written consent on conditions, including the payment by the Customer of reasonable and appropriate cancellation charges.
1.4 The Company reserves the right to require orders to be for a minimum value determined by the Company from time to time and to otherwise accept or reject in its absolute discretion any orders for goods or services by the Customer.
2. QUOTATIONS AND PUBLISHED PRICES
2.1 Quotations issued by the Company are open for the Customer to whom the quotation is addressed to place an order within 30 days from the date of quotation (unless a shorter or longer period is expressly provided for in the quotation or the quotation is withdrawn by the Company) and such orders are subject to acceptance by the Company in accordance with Clause 1.
2.2 The issue of a quotation, and any other publication of prices, by the Company do not constitute offers to sell, but are invitations to treat only. The Company may alter the prices in a price list or other publication or on a quote for any reason, including (without limitation) to take into account the costs of labour, materials, production, transport and duty, exchange rate fluctuations and other increases in the cost to the Company of supplying the goods or services, or to correct any errors by the Company in listing, determining or calculating the prices.
2.3 Quotations and orders placed by the Customer on such quotations are based on the information and details provided by the Customer to the Company. Where exact specifications of the scope, nature or extent of the items ordered are not available to the Company at the time of providing a quotation, such quotations are estimates only.
3. PRICE
3.1 Published and quoted prices are (unless otherwise specified in writing) for the sale of goods are DDP/FIS to the customer’s specified delivery location and are exclusive of any applicable goods and services tax.
3.2 If after acceptance of an order the cost to the Company of supplying the goods or services increases due to factors beyond its reasonable control, including but not limited to, increases in the cost of freight, insurance, custom duties, exchange rate fluctuations, shipping expenses, cartage, or the cost of materials, the Company may increase the prices charged by the amount of the increased cost.
3.3 Where clause 2 applies, the Company will provide written notice of the price increase to the Customer as soon as practicable and within 10 Business Days of accepting the order. If the Customer does not terminate or cancel the order within 2 Business Days of receiving that notice, the Customer will be deemed to have accepted the revised pricing.
3.4 The Customer acknowledges that:
(a) all contracted volumes and prices are specific to each accepted order;
(b) any variation to an accepted order requested by the Customer is not binding on the Company unless the variation is agreed by the Company in writing;
(c) if the Company is able to fulfil the requested variation it will inform the Customer of the terms (including quoted price) on which it will do so, which will be based on the current business and economic environment at that time including but not be limited to consideration of foreign exchange rates, shipping costs, landing and clearing costs, quarantine and compliance costs; and
(d) where the Customer accepts the Company’s terms referred to in clause 3.4(c), the Customer will be responsible for and shall pay all additional costs and charges referred to in those terms.
4. PAYMENT
4.1 The Customer is not entitled to any credit facilities until it receives notice in writing from the Company that credit facilities have been approved. Until the Customer is granted credit, the purchase price for goods plus GST (where applicable) is payable on or before delivery of the goods. The requirement for payment on or before delivery is not waived because the Seller supplies goods or services to the Customer before credit facilities have been granted, and a waiver of the payment on or before delivery requirement is not effective unless it is in writing. Where credit facilities have been approved by the Company the following provisions of this clause 4
4.2 The Company’s general payment terms for goods and services shall be made by no later than the last business day of the calendar month following the month in which the invoice for the respective goods or services is issued by the Company; unless other terms are agreed in writing by both parties; provided however that if an Event of Default occurs, and without limiting the Company’s other rights and remedies, all amounts owing by the Customer to the Company whether or not then due for payment shall be due and payable by the Customer upon demand by the Company. Payment is deemed to be made when the amount due has been received by the Company’s bank in immediately available funds. Time is of the essence in respect of the Customer’s obligation to make payment.
4.3 The Company reserves the right to terminate all or part of the Customer’s credit facility at any time in its absolute discretion and to require full or part payment upon acceptance by the Company of the Customer’s order or prior to delivery.
4.4 The Company may charge interest on any overdue amounts at the rate 2% above the penalty interest rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic). Interest will accrue daily on outstanding amounts from the due date for payment until the outstanding amount is paid in full. Without limiting any of the Company’s other rights, the Company reserves the right to withhold further deliveries of goods or the provision of services until all arrears from the Customer have been paid.
4.5 The Company may, to the maximum extent permitted by law, charge to the Customer all bank and other credit provider or facility fees and charges incurred by the Company in processing the Customer’s payment, including (without limitation) by credit card or for dishonoured payment.
4.6 The Customer agrees to pay all costs incurred by the Company for the collection of any monies owing by the Customer to the Company which are not paid when due (including, without limitation, commission charges by collection agencies and legal costs and disbursements (on an own solicitor/client indemnity basis), including (without limitation) as a consequence of instructing the Company’s lawyers to provide advice in relation to, and/or to commence proceedings for, the collection of monies owing by the Customer to the Company) upon demand by the Company.
4.7 Payments tendered by the Customer to the Company must be applied as follows: (a) first, as reimbursement for any collection costs incurred by the Company in accordance with clause 6 above; (b) secondly, in payment of any interest charged to the Customer in accordance with clause 4.4 above; and (c) thirdly, in satisfaction or part satisfaction of the oldest portion of the Customer’s account.
5. SUPPLY AND DELIVERY
5.1 Supply of goods and services by the Company to the Customer shall (unless other terms of supply have been agreed and accepted by the Company in writing on an order-by-order basis) be DDP/FIS to the Customer’s specified delivery location.
5.2 Delivery of, and transfer of risk of loss and damage to the goods, to the Customer shall be deemed to take place upon the Company delivering the goods to the Customer’s specified delivery location (unless other terms of supply have been agreed and accepted by the Company in writing on an order-by-order basis). The Company shall not be responsible for any loss or damage to goods once the Proof-of-Delivery (POD) has been signed by the Customer or the Customer’s representative.
5.3 Signature of any delivery note by any agent, employee or representative of the Customer (or where delivery is to the Customer’s carrier, by such carrier or its agent) shall be conclusive proof of delivery.
6. DELIVERY
6.1 The Company will use reasonable endeavours to effect deliveries or execute orders by the estimated or specified date of delivery, but does not warrant that delivery will be effected by that date. The Customer acknowledges and agrees that delivery times are affected by a range of circumstances and events that are beyond the Company’s reasonable control. As such, any estimated or specified delivery date is an estimate only and the Company shall not be liable for any loss or damage whatsoever (including, without limitation, special or consequential loss or damage) caused directly or indirectly by any early delivery or delay in delivery. The Company reserves the right to make delivery in two or more instalments and to invoice each instalment separately.
6.2 The Company may, acting reasonably having regard to circumstances or events beyond its reasonable control, postpone or delay any specified delivery time. The Company will give the Customer reasonable notice of any postponement or delay, and continue to use reasonable endeavours to deliver the goods as soon as is reasonably practicable after the specified delivery time.
6.3 Except in relation to any Non-excludable Obligation, and to the maximum extent permitted by law, any such postponement or delay shall be without liability of any kind for the Company, and
6.4 The Company shall not be obliged to pay any compensation or any damages due to such postponement or delay.
7. SHORTAGES/DEFICIENCIES
7.1 Except in relation to any Non-excludable Obligation, and to the maximum extent permitted by law, claims for shortages or that goods supplied by the Company do not comply with an order must be made in writing within 21 days of delivery of goods. The written notice of the claim must be accompanied by a copy of the relevant invoice and set out full particulars of the claim including the description of the goods, the date of delivery, the grounds of the claim and the amount of the claim. If the claim is that there was a shortage of supply, the notice of claim must be accompanied by a copy of the delivery note indicating that, at the time of delivery, there was a shortage.
7.2 If the Customer fails to give the Company written notice of a claim in accordance with clause 7(1), subject to any Non-excludable Obligation and to the maximum extent permitted by law, the goods will be deemed to have been accepted by the Customer, the Customer must pay for the goods in accordance with these Conditions, and the Company has no liability whatsoever in relation to, and has no obligation to pay any compensation or damages in respect of, the Customer’s claim.
8. SPECIFICATIONS
8.1 The Company’s policy is one of continuous development, and the Company therefore reserves the right to improve, change, alter or discontinue specifications without prior notice.
8.2 Subject to any Non-excludable Obligations and to the maximum extent permitted by law, all illustrations and samples are intended as approximate representations only and are not binding in detail with regard to any details.
8.3 Subject to any Non-excludable Obligations, and to the maximum extent permitted by law, the Company accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage), directly or indirectly, arising out of or in connection with same.
9. SPECIAL ORDERS
9.1 Orders for specially ordered, made or customised goods or services may not be cancelled, deferred or varied by the Customer without the prior written consent and acceptance of the Company.
9.2 Without in any way limiting the operation of this clause 9, any request by the Customer for the Company to obtain goods from a certain supplier shall automatically make such order a special order and the terms of this clause 9 shall apply to it.
9.3 The Customer acknowledges and agrees that the Company may require full or part payment immediately on acceptance of the order, and prior to production or delivery.
9.4 In the event the scope, nature or extent of the work required to be undertaken by the Company to produce, obtain or supply the goods or provide the services change (including, without limitation, as a result of the Customer not providing required specifications or other information in the prescribed form or within the required time frame, requesting special freight, provision of mock-up of goods, ordering special material, etc.) the Customer will be responsible for and pay for all extra costs and charges associated with the changes.
9.5 The Company shall be entitled to increase the price for specially ordered, made or customised goods and services if there is an increase in the cost to the Company of supplying the goods or services due to changes in the costs of labour, materials, production, transport, duty, exchange rate fluctuations or other increases in the cost to the Company of supplying the goods or services.
9.6 In the event the Customer provides the Company with specifications for the supply of goods or services by the Company for the Customer, the Customer warrants to the Company that the specifications and any goods or services supplied by the Company based on the said specifications will comply with all applicable laws relating to the supply of such goods and services and not infringe the trade mark, copyright, patent, design, other intellectual property rights or other rights of any third party.
9.7 In the case of all special orders, the Customer shall hold harmless in full, indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way with the use by the Company of the said specifications or the manufacture and supply of goods or services based on the said specifications, or arising out of such special order in any way or nature whatsoever.
10. CUSTOMER MATERIALS
10.1 The Customer shall be fully responsible for ensuring that it keeps and maintains duplicate originals or copies of any materials and other property which it provides to the Company. Any such materials or property provided to the Company shall be held or used by the Company solely at the risk of the Customer, and the Company shall not be under any liability of any nature whatsoever to the Customer for loss or spoilage of, or damage to, such materials or property.
11. POTENTIALLY DEFECTIVE GOODS PROCEDURE
11.1 If the Customer claims that goods which have been supplied may be the subject of a warranty provided by the Company or do not satisfy any Non-excludable Obligation, the Customer must, in addition to any notification obligation under clause 7, contact the Company’s Customer Service Department before the goods are attempted to be returned to discuss the nature of the claim and what action is appropriate.
11.2 The Customer agrees to provide the Company with as much information as possible in relation to any claim referred to in clause 11(1) as the Company will be relying on that information in assessing the claim.
11.3 Subject to any Non-excludable Obligation, the Customer must not return any goods the subject of a claim under clause 7 or 1 unless the Company has first given its written approval to their return. The Company will act reasonably in considering any request for return and will comply with any Non-excludable Obligations.
12. GOODS RETURN POLICY
12.1 This Clause 12 only addresses goods which are damaged (prior to delivery), not the ordered goods, oversupplied or are the subject of a warranty provided by the Company and are not the subject of any Non-excludable Obligation.
12.2 Goods may only be returned if they are damaged (prior to delivery), not the ordered goods, oversupplied or are the subject of a warranty provided by the Company.
12.3 To the maximum extent permitted by law, no claims for damage will be entertained unless the goods are noted as being “damaged” on the delivery note at the time of delivery and the claim has been made within 21 days of delivery of the goods, failing which any such claim shall to the maximum extent permitted by law be deemed to be waived by the Customer.
12.4 To the maximum extent permitted by law, the Company will not accept any goods (even, without limitation, if they are not the ordered goods or oversupplied) for return which have been used in any way unless they are otherwise the subject of a warranty provided by the Company. The Company therefore encourages the Customer to fully inspect all goods and services provided by the Company prior to goods being used.
12.5 If the Customer wishes to return goods, the Customer must notify the Company’s Customer Service Department within 21 days of delivery of goods if they are damaged (prior to delivery), not the ordered goods or oversupplied and the goods must be returned to the Company at the Customer’s risk and expense in all things within 45 days of delivery of goods, failing which the basis for any such claim for return shall to the maximum extent permitted by law be deemed to be waived by the Customer.
12.6 The Company may (but is not obliged to) accept goods that are not damaged, oversupplied or the subject of a warranty provided by the Company for return on terms and conditions determined by the Company in its absolute discretion, including (without limitation) that the goods are returned in “as new” and saleable condition free of any damage and the payment of any restocking fee charged by the Company.
12.7 Goods returned to the Company will be at the Customer’s risk until such time as the Company’s staff takes possession of the goods at the Company’s premises.
13. RETURNS
13.1 Before any goods may be returned the Customer must email or phone the Company’s Customer Service Department for authorisation of a case number (“Case Number”).
13.2 Goods must be returned by and at the Customer’s expense in their original undamaged packaging (unless the goods are the subject of a warranty provided by the Company or do not meet any applicable consumer guarantees under a Non-excludable Obligation) with a copy of the original invoice for the goods and the Case Number must be clearly marked on the outside of the box or other packaging in order for goods to be accepted by the Company’s staff.
13.3 Goods returned without a Case Number may not be accepted by the Company’s warehouse staff. The issue of a Case Number and acceptance of returned goods by the Company’s staff does not constitute acceptance by the Company of the Customer’s claim for return.
14. LIMITATION OF LIABILITY
14.1 To the maximum extent permitted by law and subject to the following provisions of this Clause 14 (including any Non-excludable Obligation), the Company shall not be under any liability, whether in contract, tort or otherwise, for any injury, damage or loss whatsoever arising in any way in connection with the supply or use of the goods or from any services provided, including (without limitation) direct, indirect, special or consequential loss or damage of any kind arising from claims by the Customer, third parties or otherwise.
14.2 If a supply under these Conditions is a supply of goods or services to a consumer within the meaning of the ACL, nothing contained in these Conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the ACL (or any other law), the exclusion, restriction or modification of which would contravene that law or cause any term of this agreement to be void (Non-excludable Obligations).
14.3 Subject to the preceding paragraph of this Clause 14, the Customer agrees that the liability of the Company (which cannot be limited beyond the following provisions) is limited to:
(a) in the case of the supply of goods, any one or more of the following (at the Company’s option):
(i) refund the original contract value of the goods affected;
(ii) the replacement of the goods or the supply of equivalent goods under the same or similar agreement;
(iii) the repair of the goods if possible; or
(b) in the case of the supply of services, any one or more of the following (at the Company’s option):
(i) the supply of the services again; or
(ii) the payment of the costs of having the services supplied again.
14.4 Without reducing the effect of, and subject always to, the preceding provisions of this Clause 14 (including any Non-excludable Obligation), in no event will the Company be responsible for alterations made to goods or services by or on behalf of the Customer.
14.5 Except in relation to any Non-excludable Obligation and to the maximum extent permitted by law, in the event the limitations of liability contained in this clause 14 are held to be unenforceable for any reason, the Customer agrees that the Company’s total aggregate liability (if any) to the Customer for any particular order for the supply of goods or services by the Company to the Customer (or any third party) will not, in any event, exceed the amount the Customer has actually paid for such goods or services, except for liability which arises directly from any negligence, fraud or wilful misconduct by the Company.
15. CONDUCT OF CUSTOMER
15.1 The Customer represents, warrants and undertakes that:
(a) the Customer and its affiliates and agents shall comply with all applicable laws and regulations, including but not limited to, anti-bribery laws, competition laws, sanctions and export control laws;
(b) none of the Customer, its affiliates or any of its officers or directors, is or is owned or controlled by any person targeted under the sanctions or export controls of the UN, US, EU, Australia or any other relevant government;
(c) the Customer will not engage in any business involving any such listed person, and
(d) the Customer will immediately inform the Company of any breach of the foregoing.
15.2 Following any breach, the Company may refuse further performance, or terminate this agreement and the Company’s relationship with the Customer, without liability to the Customer.
15.3 The Customer shall indemnify and hold harmless the Company and its directors and officers in the event of any violations of this clause.
16. TITLE
16.1 Title to and property in goods supplied by the Company shall not pass to the Customer until the Company has received payment in full of the price of all goods supplied by the Company to the Customer at any time and the Customer has discharged all existing indebtedness to the Company, whether for the price of the goods or services supplied or for any other amount which may be owing by the Customer to the Company on any other account (some of which may not necessarily be due for payment); provided however that the Customer shall bear the risk of any loss or damage to or deterioration of the goods from whatever cause arising following delivery of the goods to the Customer in accordance with Clause 5.
16.2 Until the price has been so paid:
(a) The Customer shall insure the goods for all outstanding amounts owing the Company in relation to the goods.
(b) The Customer shall store the goods in such a place and manner that they are clearly identified as the property of the Company which the Customer is holding as the Company’s bailee.
(c) The Customer may resell the goods in the ordinary course of its business (but may not otherwise sell or encumber the goods) and if it does so shall receive the proceeds of resale as trustee of the Company, and shall hold such proceeds as such. The Company shall be entitled to trace the proceeds of resale.
(d) The Company shall have the right, at any time and without prejudice to any other remedies:
(i) to enter without prior notice any premises where the goods may be without liability for trespass or any resulting damage, and to repossess any of the goods; and
(ii) to require the Customer not to resell or part with possession of, otherwise dispose of, charge or otherwise encumber or in any way alter the goods until payment is made in full.
16.3 The Company’s right to retain title of goods shall not affect its rights as unpaid seller.
16.4 The Customer hereby grants the Company an irrevocable perpetual licence to sell all goods (including, without limitation, specially ordered, made or customised goods and goods which have been altered by or on behalf of the Customer) which are not paid for by the Customer, and the Customer warrants to the Company that the sale of such goods by the Company will not infringe the trade mark, copyright, patent, design, other intellectual property rights or other rights of any third party, and the Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way with the sale of such goods by the Company. The ability of the Company to sell such goods shall not affect its rights as unpaid seller.
17. SECURITY INTEREST
17.1 The Customer:
(a) agrees that these Conditions constitute a security agreement;
(b) agrees that all goods supplied by the Company to the Customer are Other Goods;
(c) agrees that these Conditions create a security interest in the Other Goods in favour of the Company to secure the purchase price of the Other Goods supplied by the Company to the Customer; and
(d) further, and separately from the preceding provisions of this Clause 17:
(i) agrees that these Conditions also create a security interest in all of the Customer’s Other Property, although such security interest is not intended to prevent the Customer from transferring such Other Property in the ordinary course of the Customer’s business; and
(ii) separately charges all land owned now and in the future by the Customer whether owned alone or jointly as a tenant in common or as a joint tenant, in favour of the Company to secure payment and performance of all the Customer’s obligations under these Conditions, all orders for goods and/or services from the Customer which are accepted by the Company and all goods and services supplied by the Company to the Customer.
17.2 The Customer further authorises, and agrees to do and sign all such things as may be necessary for, the Company to register a financing statement with respect to the security interest:
(a) in the Other Goods; and also
(b) in the Other Property.
17.3 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest in the Other Goods and/or the Other Property, the parties agree that each of the provisions of the PPSA which Section 115 of the PPSA permits parties to contract out of, other than Sections 117, 118, 123, 126, 128, 129 and 134 (1) of the PPSA, are contracted out of.
17.4 The Customer waives its right to receive any notices required to be given by the Company to the Customer under the PPSA, except to the extent the requirement to give notices cannot be waived or excluded under the PPSA.
17.5 The Customer agrees that all payments made by the Customer to the Company may be applied by the Company to obligations owing by the Customer to the Company in any manner as the Company sees fit.
17.6 The Customer and the Company agree that the individual prices at, and the other terms of supply on, which Other Goods or services are supplied by the Company to the Customer are confidential and that except as required by the PPSA neither the Company nor the Customer will disclose those individual prices or other terms of supply.
17.7 Unless the context otherwise requires, expressions used in this Clause 17 have the same meaning as those expressions in the PPSA.
18. TRUSTS/COMPANIES
18.1 If the Customer is a trustee of a trust, the Customer agrees that these Conditions apply to, and all orders for goods and services placed by the Customer with the Company are placed by, the Customer in its personal capacity and as trustee of the trust.
18.2 If the Customer is a company or trustee of a trust it shall inform the Company of any changes to the ownership of the company or of the trust and also of any changes to the ownership of the business conducted by the Customer by forwarding a notice in writing of any such changes to the Company immediately upon becoming aware of same.
18.3 Until such notice is received by the Company, the Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way with the Company accepting orders from any person or entity which may have acquired all or any part of the Customer or its business and uses the Customer’s credit facility approved by the Company in placing orders with the Company.
19. INTELLECTUAL PROPERTY
19.1 The Customer acknowledges and agrees that all intellectual property rights in goods and services supplied by the Company are owned by the Company and that the Customer acquires no intellectual property rights in any goods or services provided by the Company to the Customer unless a separate deed of assignment is executed by the Company as a deed in relation to the intellectual property rights in any goods or services provided by the Company to the Customer.
20. CONFIDENTIALITY
20.1 The Customer agrees that the dealings between the Customer and the Company are and shall remain strictly confidential and shall not be disclosed by the Customer to any other person:
(a) without the prior written consent of Company;
(b) except to the Customer’s employees who have a need to know such information in connection with dealings in the goods of the Company and who are under an obligation to keep such matters confidential;
(c) except on a confidential basis to the Customer’s legal, accounting and financial advisers who are under an obligation to keep such provisions and matters confidential; or
(d) except as required by law.
21. DISPUTES
21.1 If a dispute arises in any way in connection with these Conditions, any orders placed by the Customer, any orders accepted by the Company or the supply of goods or services by the Company to the Customer, neither party shall start legal proceedings until the mediation procedure outlined in this Clause has been completed; provided however that this Clause shall not apply to disputes involving amounts owing by the Customer for goods or services supplied by the Company to the Customer or urgent interlocutory relief.
21.2 The mediation procedure is:
(a) either party may start mediation by serving a written mediation notice on the other, stating briefly and clearly the nature of the dispute;
(b) when the other party receives the mediation notice, both parties must try to agree on a mediator. If they fail to agree within 21 days of service of the mediation notice, either party may apply to the President of the Law Society of New South Wales, Australia or his or her nominee for such purposes to appoint a mediator;
(c) the parties must request the mediator to make a determination as to the proportion each party should be responsible for the mediator’s fees (taking into account the nature and merits of the dispute) and the parties must comply with any such determination made by the mediator and account to one another at the conclusion of the mediation accordingly, and failing any such determination by the mediator each party must pay an equal share of the mediator’s fees;
(d) the mediation shall take place in Sydney, New South Wales;
(e) the parties must comply with the mediator’s instructions about the conduct of the mediation;
(f) if the dispute is settled by mediation, each party must sign the terms of settlement, which will bind the parties; and
(g) if the dispute is not settled within 21 days after the mediator has indicated to the parties acceptance of the appointment (or within any other period the parties agree in writing), the mediation must cease.
21.3 Any terms of settlement may be used in evidence in any court proceedings.
21.4 The mediation procedure is confidential and nothing the parties or the mediator say or do during the mediation procedure and no documents concerning the dispute created for the mediation procedure may be used in or required to be produced in any court proceedings.
22. GST
22.1 If prices published by the Company or included in an order by a Customer do not expressly indicate that the prices include GST (in the case of an order by a Customer, by express reference on the face of the order and not by incorporation or reference of conditions of purchase), then the Customer will be required to pay the Company the amount of the price for the goods and services plus GST and the following provisions of this Clause 22 shall apply.
22.2 The consideration payable by the Customer for goods and services represents the value of any taxable supply for which payment is to be made. If a taxable supply is made to the Customer, then the Customer must also pay at the same time and in the same manner as the value is otherwise payable the amount of any GST payable in respect of the taxable supply.
22.3 Expressions used in this Clause 22 have the same meaning as those expressions in the GST Act.
23. FORCE MAJEURE
23.1 The Company shall not, under any circumstances, be held responsible or deemed to be in default under these Conditions for breach or delay arising out of causes beyond its reasonable control such as but not limited to acts of God or public enemy, war or civil war, invasion, insurrection, riot, fire, flood, earthquake, storm, hurricane, explosion, natural disaster, accident, epidemic, pandemic, quarantine, restrictions, labour disputes, embargoes, acts of civil or military authorities or enemies, terrorist activity or threatened terrorist activity, or other conflict of any kind. In such circumstances, neither party shall be entitled to claim damages or terminate the agreement between the parties.
24. MISCELLANEOUS
24.1 Nothing in these Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including, without limitation, the ACL) and which by law cannot be excluded, restricted or modified.
24.2 The Company reserves the right to vary these Conditions from time to time by notice in writing to the Customer. Any variation only applies to orders placed by the Customer after the Customer has been given notice of the variation.
24. 3 Headings used in these Conditions are for convenience only and shall be ignored in construing these Conditions.
24.4 References to any document (including these Conditions) are references to that document as varied, amended, consolidated, supplemented, novated or replaced from time to time.
24.5 References to any law are references to that law as amended, consolidated, supplemented or replaced from time to time.
24.6 The failure of the Company to enforce or exercise at any time or for any period of time any term of any contract incorporating these Conditions shall not constitute or be construed as a waiver of such term and shall in no way affect the Company’s right thereafter to enforce or exercise same.
24.7 Any provision of these Conditions which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of these Conditions, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.
25. DEFINITIONS
25.1 The following defined terms are used in these Conditions:
(a) “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) “all present and after-acquired property” has the meaning ascribed to that term in Regulation 1.6 of the PPSR.
(c) “Event of Default” includes any of the following things:
(i) the Customer is in breach of these Conditions and fails to remedy the breach within 7 days of being required to do so in writing by the Company;
(ii) the Customer fails to pay any monies owing under these Conditions by the date that they are due and payable; or
(iii) the Customer is unable to pay its debts as they fall due or a petition is presented or application made for the purpose of winding up the Customer or enters into liquidation or administration whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, liquidator, administrator or other like person appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt.
(d) “Ex Works” has the meaning ascribed to that term by Incoterms with the place of delivery being the Company’s premises in the State from which the goods are made available by the Company for collection by the Customer.
(e) “GST” has the meaning ascribed to that term by the GST Act.
(f) “GST Act” means A New Tax System (Goods and Service Tax) Act 1999 (Cth).
(g) “Incoterms” means the International Chamber of Commerce official rules for the interpretation of trade terms known as “Incoterms 2010”.
(h) “Non-excludable Obligations” has the meaning ascribed to that term in Clause 2.
(i) “Other Goods” has the meaning ascribed to that term in Clause 2.3 of Schedule 1 of the PPSR.
(j) “Other Property” means all present and after-acquired property, except the Other Goods supplied by the Company to the Customer, of the Customer whether acquired alone or jointly as a tenant in common or as a joint tenant.
(k) “PPSA” means the Personal Property Securities Act 2009 (Cth).
(l) “PPSRmeans the Personal Property Securities Regulations 2010 (Cth).
26. GOVERNING LAW
These Conditions and any order for goods and services from the Customer which may be accepted by the Company shall be governed by and construed in accordance with the laws of the State of NEW SOUTH WALES, Australia and the Customer hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of the State of NEW SOUTH WALES, Australia and of any Courts which may hear appeals therefrom; provided however that these Conditions and any such order may be enforced by the Company against the Customer in any other jurisdiction.
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