Stoller Australia Pty Ltd
Terms and Conditions of Sale
1. APPLICATION OF TERMS
These Terms and Conditions of Sale apply to and govern the supply of Goods to the legal entity set out in the attached Order (you, your) by Stoller Australia Pty Ltd ABN 35 065 320 747 (Stoller). You agree that any purchase of Goods from Stoller under the attached Order or any subsequent Order will be on these Terms to the exclusion of all other terms. These Terms and the applicable Order form the agreement under which Stoller will provide Goods to you (together, Agreement). These Terms will take precedence in the event of any inconsistency between the Terms and the applicable Order, and overrides and operates to the exclusion of your standard terms and conditions of purchase.
2. ORDERING GOODS
You may order Goods from time to time, by sending a written order (Order) to Stoller which specifies: (a) the date of the order; a description of the Goods; (b) the applicable Price; and (c) the Site for delivery of the Goods. No Order will be deemed accepted by Stoller unless and until it is confirmed in writing by Stoller’s authorised representative. Stoller will use its best endeavours to supply the Goods to you in accordance with the applicable Order. You agree that any Order which has been accepted by Stoller may not be cancelled by you unless Stoller otherwise agrees in writing.
3. SUPPLY OF GOODS
Subject to you performing your obligations under this agreement, Stoller agrees to provide the Goods to you in accordance with these Terms.
If there is a delay or failure by you to perform your obligations under this agreement: (a) Stoller is not responsible for any delay or failure to provide the Goods which is caused or contributed to by such delay or failure; and (b) you must pay any reasonable additional cost incurred by Stoller because of any such delay or failure.
4. RESALE RIGHTS
Stoller may appoint resellers in writing from time to time in its absolute discretion. If Stoller appoints you as a reseller, subject to your payment to Stoller of the amounts payable for the Goods in accordance with this Agreement, Stoller grants you a non-exclusive right to resell the Goods in Australia. You acknowledge that: (a) you are appointed as a reseller on a non-exclusive basis; and (b) Stoller is entitled to grant any other person rights that are the same as or similar to the rights granted to you under this clause, or exercise those rights ourselves, including in respect of clients that have their head office in Australia. In performing your role as a reseller and otherwise
5. RESALE TERMS WITH END CUSTOMERS
If you are appointed as a reseller in accordance with clause 4, the parties acknowledge and agree that you have sole responsibility for: (a) setting the prices payable for the Goods by your customers; (b) (except to the extent set out in this clause) negotiating and entering into agreements setting out the contractual terms on which your customer will be provided the Goods; and (c) collecting payment for the provision of Goods to your customers. You must ensure that, prior to delivering Goods to your Customer, you enter into a written agreement with that customer that includes legally enforceable provisions that disclaim our liability and responsibility on terms that are at least equivalent to those set out in clauses 16, 17 and 18 and ensure that we have the rights in respect of unpaid Goods under clause 11.
6. PRICE
All goods will be sold at Stoller’s then prevailing price list. It is your responsibility to ensure that the price list is current. If a different price has been quoted by Stoller, such quote will be valid for 14 days from the date of the quote. All prices are exclusive of any delivery costs (including freight, loading and insurance) and government charges (including GST) which, if applicable, will be for your account.
7. GOODS AND SERVICES TAX
Unless specifically described in the Order as ‘GST inclusive’, the Price does not include any amount on account of GST. Where any supply to be made by Stoller under an Agreement is subject to GST: (a) the consideration payable for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and you shall pay to Stoller, an amount equal to the GST payable by Stoller in respect of that supply (GST Amount); and (b) you must pay the GST Amount to Stoller at the same time and in the same manner as the GST Exclusive Consideration is payable or to be provided for that supply. If any payment to be made to a party under or in accordance with the Agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with the preceding paragraphs. Despite any other provision of the Agreement, you need not make any payment for a taxable supply made by Stoller under or in accordance with the Agreement until Stoller has given you a tax invoice in respect of that taxable supply. A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
8. PAYMENT
You may apply for a trading account. Unless and until such trading account is accepted, terms of sale are cash on delivery.
If Stoller accepts your application for a trading account then payment for any goods supplied on account will be due and payable on the last Business Day of the month following collection from the Stoller warehouse by your nominated carrier.
9. DELIVERY
All goods will be delivered on an Ex Works basis (Incoterms 2020) from the designated Stoller warehouse. You will be solely responsible for arranging and paying for insurance and transport to your own premises. You acknowledge that any time or date quoted by Stoller for availability of goods ex designated Stoller warehouse is an estimate only and Stoller shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to supply all or part of the goods on a particular date or at a particular time. If Stoller determines that it is or may be unable to supply within a reasonable time or at all the agreement may be cancelled by it. In the event of cancellation you shall have no claim against Stoller for any damage loss cost or expense whatsoever.
10. RISK AND TITLE
Risk passes on delivery in accordance with clause 9. Title to the Goods does not pass to you until the later of delivery or when Stoller has received full payment (in cleared funds) for the Goods. Where Stoller has not been paid in full because you have a trading account with us, you agree that: (a) you hold the Goods on trust for Stoller and you must transport and store the Goods in such a way that they are clearly recognisable as Stoller’s property; (b) you grant to Stoller and its Personnel an irrevocable right to enter any premises occupied by you, without notice, to search for and remove the Goods supplied; (c) Stoller and its Personnel will not be liable to you for any liabilities, losses, damages, costs or expenses arising from any action taken under clause 0; and (d) you may, as trustee for Stoller, sell products to a third party in the normal course of the your business provided you hold the book debt and proceeds of such sale on trust for Stoller. The proceeds must be kept in a separate account and must not be mixed with any other monies (including your funds).
11. PERSONAL PROPERTY AND SECURITIES ACT
You grant Stoller a security interest in all Goods supplied to you by Stoller (and in any proceeds of sale of the Goods) as security for all
indebtedness of you to Stoller. Where Goods are supplied on consignment, they may also give rise to a PPS lease and, where they do, you
grant that security interest in the Goods to Stoller.
You acknowledge and agree, to the extent permitted by law: (a) that, to the extent that the security interest secures all or part of the purchase
Price of the Goods or is a PPS lease, the security interest will be a purchase money security interest (PMSI); (b) to promptly give Stoller all
assistance and information (including signing any documents) as Stoller requests to ensure that Stoller has a perfected first ranking security
interest in all Goods (and in the proceeds thereof) supplied by Stoller; (c) that Stoller may register a financing statement on the Personal
Property Securities Register against you; (d) not to change your name, address for service, contact details or any other of its data used to
register a financing statement without notifying Stoller in writing of your intentions at least 10 Business Days prior to doing so; and (e) that you
waive your right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing
change statement relating to any security interest created under this document; and that the parties contract out of your rights, and you waive
your rights, under sections 95 (Secured party must give notice of removal of accession), 118 (Enforcing Security in accordance with land law
decisions), 121 (Enforcement of security interests in liquid assets), 125 (Obligation to dispose of or retain collateral), 130 (Notice of disposal of
collateral), 132 (Secured party to give statement of account), 135 (Notice of retention of collateral), 142 (Entitled persons may redeem collateral)
and 143 (Entitled persons may reinstate security agreement) of the PPSA.
You also acknowledge that Stoller may apply money it receives from you: (a) first, towards payment of any unsecured amount owing to Stoller
by you; (b) secondly, towards any amounts owing to Stoller that are not secured by a PMSI in favour of Stoller; and (c) thirdly, towards any
amounts owing to Stoller that are secured by a PMSI in favour of Stoller.
Further, if you are in default of these Terms or any Agreement, Stoller may apply any moneys received in respect of the Goods towards
payment of any reasonable enforcement expenses related to your default and then to payment of any secured amount owing to Stoller by you.
You must not at any time register a financing statement against Stoller under the PPSA relating to or in connection with these Terms or any
Agreement.
A word or expression used in this clause which is defined in the PPSA has the same meaning in this clause, unless the context otherwise
requires.
12. DEFAULT
If you default in payment of any invoiced amount, Stoller reserves the right to suspend all further supply until payment is received in full (in
cleared funds).
If you are in default and have a trading account, that account will be terminated on two Business Days’ written notice from Stoller.
If payment in full is not made by the due date, then without limiting any other rights of Stoller, you will pay to Stoller, interest on the amount
outstanding or on so much thereof as remains outstanding calculated from the due date of payment until payment is made in full. The annual
rate of such interest shall be 2% above the ANZ Bank Business Reference rate as published from time to time such interest to be calculated
daily and payable monthly. If the ANZ ceases to publish such rate, then the rate shall be that set under the Uniform Civil Rules 2020 (SA) in
respect of post-judgment interest (Rule 185). All costs of collection (including, but not limited to, legal costs incurred by Stoller in respect of any
overdue amount) are recoverable from you by Stoller as a debt immediately due, owing and payable to Stoller by you on a full indemnity or
solicitor-client basis at Stoller’s election.
13. STORAGE
Whilst the Goods are in your possession and control, they shall be stored out of sunlight in such a way as to maintain their chemical composition
and effectiveness. You will follow the instructions of Stoller in this regard.
14. CLAIMS
It is your responsibility to verify that the quantity and type of goods supplied is in accordance with your order. You must inspect the Goods
immediately upon delivery. Any claim for short, wrongful supply of, or defects or faults in, the goods must be notified by you to Stoller in writing
within 14 days of Delivery and include full particulars and substantiation of the claim. Any claim which you do not notify or substantiate within
the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived. If requested, you must: (a) allow Stoller to
access your premises to examine the allegedly defective Goods; or (b) return a sample of the allegedly defective Goods to Stoller at your own
cost (which cost shall be reimbursed if in Stoller’s reasonable opinion the Goods are defective).
If you have complied with the preceding clauses and it is established that the defect in the Goods was due to a defect in materials or
workmanship present in the Goods at the time of delivery, Stoller will (at the election of Stoller) either: (a) replace the defective Good(s) with
Goods that comply with these Terms; or (b) cancel any invoice that requests payment for defective Good(s) or issue a refund for any defective
Good(s) already paid for (whichever is applicable). You must not return any Goods to Stoller or destroy any Goods unless you have obtained
prior written consent and specific instructions from Stoller.
15. INTELLECTUAL PROPERTY RIGHTS
Stoller grants to you a non-exclusive, worldwide, royalty-free licence to use the Product IP to the extent necessary to use the Goods, subject to
the provisions of these Terms. You acknowledge that Stoller is the owner or licensee of the Product IP, and that these Terms do not transfer or
grant any ownership right or licence to you in relation to the Product IP. You must not copy, alter, modify, tamper with, disassemble, reverse
engineer or attempt to reverse engineer the Goods, except to the extent permitted by applicable law or treaty. You must not use any other trade
marks on or in relation to the Goods, or remove or obscure any trade marks applied to the Goods by Stoller, without Stoller’s prior written
approval.
16. LIABILITY
Nothing in these Terms operates to exclude the application of any implied condition or warranty, provision, the exercise of any right or remedy,
or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or
modification of which would contravene that statute; or cause any term within these Terms to be void (Non-excludable Obligation). Except in
relation to Non-Excludable Conditions, to the extent permitted by law, all conditions and warranties however expressed or implied are expressly
excluded and negatived. Where the liability of Stoller for a breach of a condition or warranty cannot be excluded, to the extent permitted by law
it will be limited, at Stoller’s option, to the replacement or repair of the Goods or the cost of replacing or rectifying the goods or of acquiring
equivalent goods.
Without limiting the preceding clause, (a) Stoller will have no liability whatsoever to you for any loss, harm, damage, cost or expense (including
legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract,
loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data); and (b) the aggregate of Stoller’s liability to
you in connection with these Terms or any Agreement or on any basis in law or equity is otherwise limited to an amount not exceeding the
amount actually paid by you in respect of the Goods the subject of the claim.
17. PERFORMANCE AND REPRESENTATIONS
You acknowledge that neither Stoller nor any person purporting to act on its behalf has made any representation or given any promise or
undertaking which is not expressly set out in writing either in respect of the fitness of the goods for any particular purpose or any other matter.
18. FORCE MAJEURE EVENT
If a Force Majeure Event prevents Stoller from performing its obligations under an Agreement: (a) those obligations of Stoller will be suspended
for as long as the Force Majeure Event continues; (b) Stoller will use its best endeavours to mitigate the effect of the Force Majeure Event; and
(c) Stoller will not be liable to you for any liabilities, losses, damages, costs or expenses that you suffers or incurs as a result of that Force
Majeure Event. If Stoller is unable to fulfil an Order due to a Force Majeure Event it may extend the date for delivery or amend the
characteristics or specifications of any Goods entirely in its discretion. If Stoller is prevented from performing its obligations for more than 30
days as a result of a Force Majeure Event, you may terminate these Terms or the relevant Agreement with immediate effect by giving written
notice to Stoller.
19. WAIVER
Any waiver by Stoller under this Agreement must be in writing and signed by Stoller. Failure by Stoller to insist upon strict performance of any
term warranty or condition of this agreement shall not be deemed a waiver thereof or of any rights Stoller may have and no express waiver shall
be deemed a waiver of any subsequent breach of any term, warranty or condition.
20. NOTICES
Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its officers or its duly authorised
lawyer or agent and must be hand delivered or sent by prepaid post or sent by electronic mail to the address or electronic mail address (as the
case may be) shown at the commencement of this Agreement (or any other address or electronic mail address that a party may notify to the
other) and will be deemed sufficiently given:-
(1) in the case of hand delivery, on delivery; or
(2) in the case of prepaid post, 5 Business Days after being sent by prepaid post (or 7 Business Days after the date of posting if posted to
or from a place outside Australia); or
(3) in the case of electronic mail, on the next Business Day after transmission provided that the sender can give evidence of transmission
and the intended recipient does not give evidence of non-receipt.
21. GENERAL
(1) This and any other agreement between you and Stoller for the sale or supply of goods is made in South Australia, and is governed by, takes
effect and must be construed in accordance with the laws of South Australia. You and Stoller irrevocably submit to the exclusive jurisdiction of
the courts of South Australia in respect of the hearing and determination of any action or other proceeding concerning the same. (2) Stoller may
vary these Terms from time to time by written notice to you. Any variation to the Terms will not apply to an Order that was confirmed by Stoller
prior to the variation. (3) Each party must do or cause to be done all things necessary or desirable to give effect to these Terms. (4) The
relationship between the parties does not involve any relationship of agency, fiduciary, employment, partnership, joint venture or association. (5)
If any provision of these Terms is invalid, void, illegal or unenforceable, it may be severed from these Terms and the remaining provisions shall
continue in force. (6) The failure of Stoller to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it
affect Stoller’s right to subsequently enforce that provision. (7) These Terms are governed by the law applicable in the State of South Australia,
and each party submits to the jurisdiction of the courts of that State. (8) These Terms constitute the entire agreement between the parties in
connection with its subject matter and supersede all other representations and agreements in connection with its subject matter. (9) An Order
which incorporates these Terms may be executed in any number of counterparts and all counterparts when exchanged will be taken to
constitute one document.
22. INTERPRETATION
In these Terms unless the contrary intention appears:
Business Day means a day that is not a Saturday, Sunday or public holiday in Adelaide, South Australia.
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether registered, pending,
registrable or unregistered, including rights in, or in respect of, or in connection with Confidential Information, copyright, inventions, patents,
trade marks, business names and domain names, whether or not now existing, and includes any right to apply for the registration of such rights
and includes all renewals and extensions.
Force Majeure Event means anything outside the reasonable control of Stoller, including fire, flood, earthquake, acts of God, riot, civil disorder,
or any act or omission of a third party or failure of any machinery used by Stoller.
Personnel, in relation to a party, means that party’s employees, contractors, directors and officers.
Product IP means the Intellectual Property Rights in and relating to the Goods, and includes (for the avoidance of doubt and without limitation)
all Intellectual Property Rights in the Goods, Stoller’s technical and user manuals for the Goods (if any), its packaging designs and any
marketing or promotional materials for the Goods.
In these Terms, unless the contrary intention appears: (a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning; (c) a reference to A$, $A, dollar or $ is to
Australian currency; (d) a reference to time is to South Australia, Australia time; (e) a reference to a party includes the party’s executors,
administrators, successors and permitted assigns and substitutes; (f) a reference to a person includes a natural person, partnership, body
corporate, association, governmental or local authority or agency or other entity; (g) the meaning of general words is not limited by specific
examples introduced by including, for example or similar expressions; (h) a rule of construction does not apply to the disadvantage of a party
because the party was responsible for the preparation of these Terms or any part of it; (i) if a day on or by which an obligation must be
performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business
Day; and (j) headings are for ease of reference only and do not affect interpretation.