Terms and Conditions of Trade
1. Definitions and Interpretation
1.1. In these terms and conditions:
(a) ‘Agreement’ means the agreement between OSS and the Purchaser to provide Goods to the Purchaser subject to these terms and conditions as defined in clause 2 below;
(b) ‘OSS’ means Osprey Security Solutions Pty Ltd ABN 58842782460;
(c) ‘Goods’ means the products supplied by OSS to the Purchaser;
(d) ‘Purchaser’ means the purchaser of the Goods;
(e) ‘Quotation’ means any quotation given by OSS to the Purchaser;
(f) ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
2.1. OSS may amend these terms and conditions by giving notice in writing, any amended terms and conditions shall apply immediately after giving such notice.
2.2. The Purchaser agrees that, upon placement of an order for Goods with OSS, the Goods will be supplied by OSS under these terms and conditions and the Purchaser will accept the purchase of the Goods under these terms and conditions.
2.3. These terms and conditions, the credit application, the credit terms, and any other written instruction or authority provided by OSS to proceed constitutes the entire agreement between the Purchaser and OSS to the maximum extent permitted by law.
3.1. Any Quotation will remain valid for 30 days from the date of issue.
3.2. The Purchaser acknowledges and agrees that:
(a) it is their responsibility to verify that Goods are fit for purpose;
(b) prices in the Quotation unless specifically stated otherwise are exclusive of GST, freight and other taxes, duties and charges;
(c) all Quotations are strictly confidential and will not be disclosed to any other party;
(d) the prices in the Quotation may vary after the date of issue of the Quotation and that it will pay for additional charges as required by OSS or any other party
4. Orders and Cancellations
4.1 Orders will not be binding upon OSS until accepted either formally in writing or by way of positive action to invoice or dispatch the Goods.
4.2 OSS may in its discretion refuse to supply any order for any reason whatsoever.
4.3 Any order for customized Goods or non-stocked Goods by the Purchaser cannot be cancelled.
4.4 Furthermore, no order may be varied or cancelled except with the written consent of OSS, which consent may include such terms which will indemnify OSS against any losses incurred due to the cancellation.
4.5 The Purchaser acknowledges and agrees that each order placed by it is a representation to OSS that the Purchaser is solvent and able to pay OSS’s accounts as and when they are due.
5.1 Subject to these terms and conditions, the price of all Goods supplied by OSS to the Purchaser will be set at:
(a) OSS’s listed price current at the time of delivery; or
(b) OSS’s listed price less any discount agreed to in writing by OSS (trade price).
5.2 If currency exchange rates or customs duties for goods imported by OSS change between Quotation or Order and time of delivery, OSS may adjust the price to reflect such changes.
5.3 All prices unless specifically stated otherwise are exclusive of GST. Any GST payable must be paid by the Purchaser to OSS in the same manner and at the same time as the consideration for the supply is required to be paid by the Purchaser under these terms and conditions.
5.4 Prices are subject to change at any time without notice.
6. Terms of Payment
6.1 Payment terms are strictly Cash On Delivery unless a credit facility is granted by OSS to the Purchaser.
6.2 OSS will invoice the Purchaser for Goods at the time of supply. All invoices are due and payable within 30 days following the month-end in which the invoice to which the Goods relate is issued.
6.3 The Purchaser acknowledges and agrees that OSS is authorized to allocate the payment of any monies received from the Purchaser against any outstanding OSS account of the Purchaser.
6.4 If the Purchaser defaults in making payment in accordance with these terms and conditions, OSS may in its absolute discretion and without notice:
(a) suspend payment discounts;
(b) withdraw the approval of a credit facility and refuse any subsequent orders from the Purchaser for the supply of goods;
(c) charge the Purchaser interest on that portion of the Purchaser’s account overdue at the penalty rate fixed under the Penalty Interest Rates Act 1983 (Victoria), calculated and payable daily, compounded from the due date until the invoice is paid in full;
(d) require the Purchaser to reimburse OSS for all legal costs and expenses on a solicitor/client basis as a consequence of OSS instructing its solicitor to provide advice in connection with the default and/or to commence any recovery process and any other costs, expenses, losses or damages arising out of a breach of the Agreement.
6.5 The Purchaser agrees at the request of OSS to procure its directors to sign a personal guarantee and indemnity of the Purchaser’s obligations to pay any amount due and payable to OSS, if and when required.
6.6 Any credit application approved by OSS for the Purchaser is granted by OSS on the basis of its reliance on information supplied by, and representations made on behalf of, the Purchaser.
6.7 The Purchaser must inform OSS of any changes to the ownership of the Purchaser by notice in writing immediately. Until such notice is received by OSS the Purchaser, and if the Purchaser is a trustee each of the trustees, will hold OSS indemnified against all losses of whatsoever nature incurred or suffered by OSS in trading with any person, company or other entity which may have purchased the Purchaser’s business or any interest therein and used the Purchaser’s previously approved credit account for trading.
6.8 The Purchaser hereby grants OSS the authority to lodge a consent caveat over any real property owned or partly owned by the Purchaser to protect its interests in respect of, and to secure any monies that are owed by the Purchaser to OSS.
7. Delivery and Freight
7.1 OSS accepts no responsibility either to deliver or to load Goods at the point of despatch.
7.2 OSS may in its sole discretion elect to arrange delivery of the Goods and charge the Purchaser a freight charge. If OSS elects to arrange delivery, it is at the Purchaser’s cost and risk.
7.3 OSS will make all reasonable efforts to deliver the Goods by the agreed delivery date but will not be liable in any way should delivery not be made on this date.
8. Reservation of Title
8.1 The Purchaser acknowledges that the ownership of Goods delivered by OSS is only transferred to the Purchaser when the Purchaser has paid all sums owing to OSS on any account whatsoever and that until such time OSS has the right to call for or recover the Goods at OSS’s option (for which purposes OSS’s employees or agents may enter the Purchaser’s premises) and the Purchaser is obliged to deliver up the Goods if so directed by OSS.
8.2 The Purchaser agrees to keep the Goods in a fiduciary capacity for OSS until such time as ownership is transferred to the Purchaser.
8.3 Notwithstanding clause 8.2, the Purchaser may sell the Goods to a third party in the ordinary course of business provided that the Purchaser will hold on trust for OSS the proceeds of such sale and will keep those amounts in a separate bank account and immediately apply same in payment to OSS.
9.1 The Purchaser acknowledges and agrees that it grants OSS a security interest in the Goods and their proceeds including any accounts and accessions by virtue of these terms and conditions.
9.2 The Purchaser agrees that:
(a) these terms and conditions, or such other terms and conditions as OSS may adopt from time to time, apply to the supply of Goods by OSS to the Purchaser to the exclusion of all other terms and conditions of trade;
(b) no variation to these terms and conditions will be of any effect unless agreed to by OSS in writing;
(c) the Goods supplied by OSS secure the payment of the purchase price of those Goods and of any other Goods supplied by OSS;
(d) it will do all things necessary including providing all information required to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR) as a security interest and a purchase money security interest (PMSI) pursuant to the PPSA;
(e) it will not change its name, ACN or ABN or other details required on the PPSR without first notifying OSS;
(f) it waives its right to receive any notice under the PPSA including a verification statement in respect of any financing statement or financing change statement in respect of the security interest created pursuant to these terms and conditions;
(g) it must pay OSS’s costs of any discharge or necessary amendment of any financing statement or financing change statement.
9.3 To the maximum extent permitted by law, the Purchaser agrees that the following sections of the PPSA will not apply:
(a) section 118;
(b) section 121(4);
(c) section 125;
(d) section 130;
(e) section 142; and
(f) section 143.
9.4 To the maximum extent permitted by law, the Purchaser waives any rights it may have pursuant to, and hereby contracts out of the following sections of the PPSA:
(a) section 95;
(b) section 118
(c) section 121(4)
(d) section 123;
(e) section 129(2);
(f) section 130;
(g) section 132;
(h) section 134(2);
(i) section 135;
(j) section 157; and
(k) Part 4.3.
9.5 Unless otherwise defined in these terms and conditions, the terms and expressions used in this clause have the meanings given to them or by virtue of the PPSA.
10. Risk Notwithstanding the provisions of clauses 8 and 9 the Purchaser accepts all risk of loss and damage of the Goods, whether caused by the Purchaser or not, once the Goods have left the OSS premises.
11. Returns Policy
11.1 OSS will not accept returns for credit without prior authorization.
11.2 Any customized or non-stocked Goods may not be returned for credit under any circumstances.
11.3 OSS may allow returns for credit at its sole discretion, but in any event:
(a) requests for return and credit must be made within 30 days of invoice, and will be refused after 30 days of invoice;
(b) the Goods which the Purchaser wishes to return for credit must be in their original unmarked and undamaged packaging and in ‘as new’ and saleable condition free of any damage whatsoever;
(c) the Goods must be accompanied by OSS’s completed Goods Return Request Form;
(d) the Purchaser will be responsible for the cost of and for effecting delivery of the Goods returned to OSS, unless the return is due to incorrect supply or faulty goods;
(e) upon receipt of the returned goods, OSS will credit the Purchasers account less a 25 percent restocking fee. The restocking fee charged by
OSS may be greater than 25 percent in its sole discretion. 11.4 This clause is subject to the Purchaser’s statutory rights under the Competition and Consumer Act 2010 (Cth).
12.1 Any claims by the Purchaser for short delivery must be made within 7 days of the delivery.
12.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within 30 days of the invoice date.
13. Withholding Supply
13.1 OSS reserves the right, irrespective of whether or not an order has been accepted and without notice to the Purchaser, to withhold supply to the Purchaser and OSS will not be liable for loss or damage resulting directly or indirectly from such action where:
(a) the Goods ordered have been discontinued; or
(b) OSS has determined, in its absolute discretion, that credit should no longer be extended to the Purchaser.
14. Non-availability Whilst every effort will be made to fulfil the Purchaser’s order for the Goods, OSS will not be liable for any loss or damage whatsoever resulting directly or indirectly from non-availability of the Goods.
15. Licenses and Regulations
15.1 It is the Purchaser’s responsibility to obtain any license, consent or approval required by any government or other authority for the purchase or use of the Goods.
15.2 The Purchaser must comply with all applicable laws, regulations and requirements in connection with its use, re-sale or other on supply of the Goods to third parties, including but not limited to the Competition and Consumer Act 2010.
16. Warranty and Liability
16.1 OSS warrants that the Goods are free from defects in materials and workmanship. This warranty is for 12 months from the effective date of delivery of the Goods, or such period provided in the manufacturer’s warranty documentation accompanying the Goods, whichever is the lesser.
16.2 If the Purchaser makes a valid warranty claim, OSS will, at its option, either repair the Goods, supply replacement Goods, or reimburse the Purchaser for the price. OSS shall not be liable for defects arising from fair wear and tear or misuse of the Goods.
16.3 The Purchaser is liable for the transport or other cost of sending warranty claim Goods to OSS, and for collection of repaired or replacement Goods.
16.4 OSS does not exclude or limit the application of any provision of any applicable statute, legislation or other regulation (including the Competition and Consumer Act 2010) where to do so would contravene that statute, legislation or regulation or cause any part of these terms and conditions to be void and nothing in these terms and conditions is to be interpreted as doing so.
16.5 Subject always to clause 16.4, OSS excludes all statutory or implied conditions and warranties to the maximum extent permitted by law, except any implied term, condition, guarantee or warranty the exclusion of which would contravene any statute or cause this clause to be void (‘Non-excludable Condition’).
16.6 To the fullest extent permitted by law, OSS’s liability to the Purchaser for breach of any Nonexcludable Condition which is applicable is limited to, at the option of OSS. If the breach relates to Goods:
(a) the replacement of the goods or the supply of equivalent goods, the repair of the goods;
(b) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the payment of the cost of having the goods repaired.
16.7 To the maximum extent permitted by law, OSS excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to the Purchaser or any other person for:
(a) any loss or damage consequential or otherwise for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods and whether as a result of any breach, default, negligence or otherwise by OSS suffered or incurred by the Purchaser or any other person in relation to the Goods; and
(b) in particular, but without limiting clause 16.7(a), any loss or damage consequential or otherwise suffered or incurred by the Purchaser or any other person caused by or resulting directly from any failure, defect or deficiency of any kind of or in the Goods.
17. Force Majeure OSS will not be liable for any loss or damage sustained by the Purchaser through delay in delivering the Goods caused by circumstances outside of the reasonable control of OSS.
18. Intellectual Property Rights
The Purchaser acknowledges that it does not have any intellectual property rights, whether by way of copyright or registered design or otherwise, in the goods and that OSS retains ownership of all such intellectual property.
19. Indemnity Except as otherwise provided herein, the Purchaser indemnifies and holds harmless OSS against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused or arising out of, connected with, or resulting from the Goods themselves or use of the Goods including without limitation the manufacture, selection, delivery, possession, use, operation, return or any and all damages or injuries caused thereby to anyone whatsoever.
20.1 OSS may immediately terminate all outstanding obligations to supply Goods, and/or suspend the Purchaser’s credit facility, if the Purchaser:
(a) breaches this Agreement;
(b) commits an act of bankruptcy or makes an arrangement with all or any number of its creditors, or has a receiver or liquidator appointed.
20.2 Upon termination provided by clause 20.1:
(a) OSS may enforce its rights under this Agreement without prejudice to any other rights it may have;
(b) all other obligations upon the Purchaser shall remain, and any amounts owing to OSS then unpaid whether or not due under the terms of this Agreement shall immediately become due and payable.
21.1 The Agreement will be governed by the law of the State of Victoria. The Purchaser irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of that state.
21.2 The invalidity or unenforceability of any provision of the Agreement shall not adversely affect the validity or enforceability of the remaining provisions.
21.3 Any failure by OSS to insist on strict compliance with any term of the Agreement shall not be deemed a waiver of such term. Such failure shall in no way affect the right later to enforce such term.
21.4 OSS reserves the right to correct clerical errors without notification.