These terms and conditions govern the supply of Products and may not be amended unless otherwise agreed in writing.
Last updated: February 2020.
- These are the Terms and Conditions referred to in the Tax Invoice.
- These Terms and Conditions apply to any contract entered into by Whistle Design Group Pty Ltd ACN 160 828 428 or any party nominated by it (the Supplier) with a Customer for the supply of Products (and not to the provision of design services).
- These Terms and Conditions will prevail in any conflict between them and the terms of any other dealings between the parties.
AGREEMENT TO SUPPLY PRODUCTS
- The Supplier agrees to supply the Products to the Customer in accordance with these Terms and Conditions and in consideration of the payment of the Price by the Customer.
PRICE AND PRODUCTS
- The Customer must pay the Price (and any related freight, taxes and duties) in accordance with the Tax Invoice. The Customer acknowledges that prices are subject to change from time to time.
ORDERS AND PAYMENT
- The Supplier will provide a Tax Invoice to the Customer outlining the Products to be provided, delivery address, Price, and other costs payable in relation to the supply (including freight, taxes and duties). Once confirmed by the Customer the Tax Invoice will form part of these Terms and Conditions.
- An order is confirmed when the Tax Invoice is supplied and the Customer pays the deposit in accordance with the Tax Invoice.
- The Supplier will not be obliged to satisfy any order unless and until the Supplier receives payment of the deposit.
- Once an order is confirmed, that order may not be cancelled or varied except with the Supplier’s prior written consent and on terms which will indemnify the Supplier against all losses.
- The Customer shall make payment as agreed between the parties and set out in the Tax Invoice. If payment terms are not set out in the Tax Invoice then payment is required as follows:
- 50% of the Price for all orders at the time of confirming the order via electronic bank transfer to an account nominated by the Supplier from time to time; and
- the remaining 50% of the Price within 7 days of delivery via electronic bank transfer; and
- any freight costs, taxes and duties as and when due and, if payable to the Supplier, within 7 days of receipt of an invoice for such amounts via electronic bank transfer.
- The Supplier may, in its absolute discretion, charge interest at the Interest Rate on outstanding accounts. The Supplier may also stop supplying Products until all outstanding accounts are paid. In the event of such cessation, the Supplier shall not incur any liability to the Customer and the Customer releases the Supplier from any Claims relating to such cessation of supply.
- The delivery address shall be agreed between the Supplier and Customer at the time the order is placed. If no delivery address is agreed, the order shall be delivered to the Customer’s place of business.
- Any delivery times made known to the Customer are estimates only and the Supplier is not liable for any loss, damage or delay (including Consequential Loss) occasioned to the Customer or its customers arising from late delivery of the Products. The Customer acknowledges that the Suppler may be reliant on third party manufacturers and/or suppliers and cannot guarantee any delivery times.
- In the event that a Force Majeure event occurs such that the Supplier is unable to supply the Products, then the Supplier shall be relieved from performance of its obligations under these Terms and Conditions for the duration of that Force Majeure event and the Customer shall be entitled to purchase Products (or similar products) from a third Party for the duration of that Force Majeure event.
TITLE AND RISK
- Legal and equitable title in all Products supplied by the Supplier remains with the Supplier until the Customer has paid the Supplier all monies owing by the Customer to the Supplier.
- Once the Products are delivered to the Customer, the Customer will hold the Products in a fiduciary capacity as the bailee for and on behalf of the Supplier. The Customer shall identify them as Products owned by the Supplier.
- Risk in the Products shall pass to the Customer at the time of delivery.
- If the Customer defaults in payment or is the subject of an Insolvency Event, the Supplier may, without notice, liability or legal process, enter the Customer’s place of business and seize, remove, retain and/or sell the Products in satisfaction of the amounts and/or obligations owing by the Customer.
- The Customer agrees that payments made by it to the Supplier may be applied in satisfaction of amounts owing by it in the Supplier’s absolute discretion.
- To the extent permitted by law, this clause 6 shall survive termination of any agreement between the Supplier and Customer.
- Except as provided herein, all express and implied warranties, guarantees, representations and conditions under statute or general law are expressly excluded. The Supplier is not liable for personal, property or financial injury, loss or damage or for Consequential Loss of any kind arising out of the supply or use of the Products or arising out of the Supplier’s negligence or in any way whatsoever.
- Nothing in these Terms and 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 the Consumer and Competition Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
- To the extent permitted by law, the liability of the Supplier for a breach of warranty or condition under an agreement between the Parties, or implied by statute or law in relation to the Products sold, is, at the option of the Supplier, limited to:
- the replacement of the Products;
- the supply of equivalent Products;
- payment of the cost of replacing the Products; or
- payment of the cost of acquiring equivalent Products.
- The maximum aggregate liability of the Supplier for any Claims brought against it connected directly or indirectly to an agreement between the Parties is limited to the Price paid by the Customer for the Products which are the subject of the Claim(s).
- If the Products are modified, altered, or assembled in any way by the Customer after delivery, the Supplier will not be liable for any Claims brought against the Customer or the Supplier in connection directly or indirectly with such Products after modification, alteration or assembly and the Customer releases the Supplier from and indemnifies the Supplier against liability directly or indirectly resulting from any such Claims.
- If the Products (or any part of them) are not manufactured by the Supplier, any guarantee of the manufacturer is accepted by the Customer as the only guarantee given in respect of the Products.
- The Customer acknowledges that the Products are in a testing phase and accordingly releases and indemnifies the Supplier from and against any Claims brought against the Customer or the Supplier for loss or damage howsoever arising in respect of the Products.
- Without limiting the foregoing, the Customer releases and forever discharges the Supplier in respect of any and all Consequential Loss the Customer may suffer howsoever and whensoever arising in respect of any agreement between the Parties (including these Terms and Conditions) or the Products.
- The Customer waives any Claim for shortage of any Products delivered if a Claim in respect for short delivery has not been lodged with the Supplier within seven (7) days from the date of receipt of the Products by the Customer.
- If the Customer finds any defects in any of the Products it must notify the Supplier in writing and provide evidence of such defect (including at least one sample of a Product containing such defect) and must return all Products which it considers to be defective to the Supplier within 30 days after receipt of such Products and must allow the Supplier reasonable time to investigate and assess such Products (including providing additional samples if requested) and if the Supplier agrees that the Products are defective then the Supplier must, at its discretion, either:
- provide replacement Products within a reasonable time (bearing in mind any requirements of third parties);
- supply equivalent Products within a reasonable time (bearing in mind any requirements of third parties); or
- refund the Price of the Products paid by the Customer to the Supplier.
- Each Party undertakes to keep these Terms and Conditions and the other party’s Confidential Information confidential, provided that nothing in this paragraph shall prevent:
- the Supplier from promoting its status as supplier of the Products and supplier to the Customer;
- a Party from disclosing any information on a confidential or privileged basis to that Party’s professional advisers who are under an appropriate burden of confidentiality;
- a Party from disclosing any information to a Party’s officers or employees who need to know the information for the purpose of performing that Party’s obligations under these Terms and Conditions and who are under an appropriate burden of confidentiality;
- the Supplier disclosing to its manufacturer, supplier and distributor (if applicable) who shall be under an appropriate burden of confidentiality, these Terms and Conditions, Product details and any Confidential Information as the Supplier deems reasonably necessary; or
- a Party disclosing these Terms and Conditions to its Associated Entities who shall be under an appropriate burden of confidentiality.
- If a party (Defaulting Party) fails to comply with any of these Terms and Conditions or is the subject to an Insolvency Event:
- the other party (Non-Defaulting Party) may give the Defaulting Party a written notice (Default Notice) setting out the details of the default, the action required to remedy the default and, subject to clause 2, the date by which the default must be remedied; and
- if the Defaulting Party fails to comply with the Default Notice, the Non-Defaulting Party may terminate any agreement between the Parties with immediate effect by giving written notice to the Defaulting Party.
- The period allowed for remedying a default set out in a Default Notice shall be as follows:
- in relation to a default by the Supplier – 90 days from the date of the Default Notice;
- in relation to a default by the Customer:
- relating to an obligation to pay any amount – 14 days from the date of the Default Notice;
- relating to any other default – 30 days from the date of the Default Notice.
- If an agreement between the Parties is terminated after an order is confirmed, but before delivery of the Products, the Customer must complete the purchase of all Products under order held by the Supplier and/or its manufacturer at the date of termination.
- If a Party (Provider) makes a supply under or in connection with these Terms and Conditions and is liable by law to pay GST (as defined by A New Tax System (Goods and Services Tax) Act 1999 (Cth)(GST Law)) on that supply, unless the consideration is expressly said to include GST the consideration otherwise payable by the other Party (Recipient) will be increased by an amount equal to the GST paid or payable by the Provider.
- The Provider must issue a tax invoice to the Recipient for any supply for which the Provider may recover GST from the Recipient under an agreement. The tax invoice must comply with the requirements of GST Law.
- These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria and the Parties submit to the non-exclusive jurisdiction of the Courts of that State.
- A failure of any Party at any time to exercise a right is a not a waiver of that Party’s right.
- These Terms and Conditions will only be varied by written agreement between the Supplier and the Customer.
- Any illegal or unenforceable clause of these Terms and Conditions shall be severed and, to the extent permitted by law, will not affect the continued operation of the remaining clauses.
- The Customer may not assign its rights or obligations without the written consent of the Supplier (which consent may be given or withheld in its absolute discretion).
- These Terms and Conditions do not create a joint venture, partnership or agency relationship between the Parties.
- In these Terms and Conditions:
- Associated Entities has the meaning set out in the Corporations Act 2001 (Cth);
- Claim means a claim, demand or proceeding arising out of a cause of action including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action;
- Confidential Information means information, technical data and know-how (whether written, oral or in other recorded or tangible forms) including that which relates to research, product plans, 2D/3D drawings, products, services, customers, markets, business plans, trade secrets, details of arrangements and agreements with or proposed with third parties, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances and derived information (meaning notes, calculations, summaries or other material derived from the foregoing) but will not include information that:
- Is already in the possession of the Party receiving the information at the time of disclosure as shown by that Party’s files and records immediately prior to the time of disclosure;
- prior to or at the time of disclosure the information is in the public domain, other than as a result of any improper inaction or action of the Party receiving the information (or its employees or agents);
- is approved by the discloser, in writing, for release; or
- is required by law to be disclosed (in which case the Party receiving the information must notify the discloser before making such disclosure);
- Consequential Loss means loss which is not direct loss (being loss arising naturally from the breach according to the usual course of things, regardless of whether the parties considered the effect of the breach at the time they made the contract), and includes any special, exemplary or punitive damages, incidental, indirect or consequential damages, losses or expenses, and any loss of use, revenue, profits, reputation, goodwill, business opportunity or anticipated saving or increased cost of working capital;
- Customer means the party listed as such on the Tax Invoice;
- Force Majeure means any event or circumstance or combination of events or circumstances:
- comprising loss or damage by fire, flood, explosion, earthquake, lightning, storm, tempest, riot, civil commotion, theft, vandalism, malicious damage, national transport disruption (caused by strikes or fuel shortages or other similar causes) or any similar cause;
- which prevents a Party from performing its obligations under these Terms and Conditions; and
- where the occurrence was not caused by a Party or any person for whom it is responsible under these Terms and Conditions, or where the effects of the event or circumstance could not have been prevented, overcome or remedied by the exercise by that Party of a standard of care and diligence consistent with that of a prudent and competent person under the circumstances;
- Insolvency Event means, in relation to an entity:
- a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertaking of the entity;
- the entity suspends payment of its debts generally;
- the entity is or becomes unable to pay its debts when they are due;
- the entity enters into or resolves to enter into any arrangement, competition or compromise with, or assignment for the benefit of, its creditors or any class of them; or
- an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity;
- Interest Rate means 2% above the penalty interest rate from time to time set pursuant to the Penalty Interest Rate Act 1983;
- Moral Rights has the same meaning as set out in the Copyright Act 1968 (Cth);
- Parties means the Supplier and Customer as set out in the Tax Invoice;
- Price means the price for Products as shown in the Tax Invoice once approved by the Supplier;
- Products means the products to be supplied as agreed between the parties and as set out in the Tax Invoice;
- Tax Invoice means a tax invoice provided to the Customer by the Supplier from time to time.
- Terms and Conditions means these terms and conditions and incorporating the terms contained in the Tax Invoice.
- Headings are not part of these Terms and Conditions.
- “Including”, wherever used throughout these Terms and Conditions, means “including but not limited to”.