These Terms commence on the date they are first provided to the Buyer, until superseded or replaced and the Buyer agrees to be bound by these Terms in all dealings between the parties where credit is extended by Priority Supplies.
2. Supply of Products
2.1 Ordering procedure
- The Buyer must order the Products from Priority Supplies by submitting (via facsimile or email) a signed Purchase Order to Priority Supplies
- Once placed, a Purchase Order cannot be cancelled, or delivery deferred, without Priority Supplies’ consent.
2.2 Acceptance by Priority Supplies
- Priority Supplies is not bound by a Purchase Order unless and until it accepts the Purchase Order by notifying the Buyer of that acceptance (Acceptance Notice).
- If within 2 Business Hours of Priority Supplies providing the Buyer with an Acceptance Notice, the Buyer does not advise Priority Supplies of any error or deficiency in the Acceptance Notice, the terms set out in the Acceptance Notice will be deemed to be binding on the parties and Priority Supplies will commence performance of the Purchase Order.
- To the fullest extent permitted by Law, Priority Supplies is not obliged to accept any Purchase Order.
- Once Priority Supplies accepts a Purchase Order, the parties must comply with that Purchase Order in accordance with these Terms.
- If there is any inconsistency between the terms set out in a Purchase Order accepted by Priority Supplies and these Terms, these Terms prevail to the extent of the inconsistency.
- If there is any inconsistency between the Special Conditions and any terms set out in the General Terms, the Special Conditions prevail to the extent of the inconsistency.
3. Delivery procedure
3.1 Delivery by Priority Supplies
- If required to do so under an agreed Purchase Order, Priority Supplies must deliver the Ordered Products to the address specified in the relevant Purchase Order (Delivery Address). In all other instances, the Buyer will be responsible for delivery.
- If Priority Supplies is responsible for delivery in respect of a Purchase Order, Priority Supplies must use reasonable endeavours to effect delivery under clause 3.1(a) on the date or within the period specified in that Purchase Order, but in no circumstances will Priority Supplies be liable for any loss or damage resulting from a delay in delivery.
- The Buyer is always responsible for (and must pay any and all costs associated with) arranging the unloading of the Ordered Products at the Delivery Address.
3.2 Carrier’s consignment note and confirmation
The Buyer must ensure that its duly authorised representative signs Priority Supplies’ copy of the carrier’s consignment note accompanying each delivery of Ordered Products, as confirmation that the Ordered Products specified in it have been delivered in good order and condition.
The price payable by the Buyer to Priority Supplies for each Ordered Product will be the price specified by Priority Supplies for that Product at the time of delivery (plus any and all freight, packaging and delivery costs notified by Priority Supplies to the Buyer).
For each delivery of Ordered Products, Priority Supplies must provide an invoice to the Buyer for the amount payable under these Terms for those Ordered Products (Invoice).
5.2 Terms of payment - Customers
- A Customer must:
- pay a deposit (of an amount nominated by Priority Supplies) to Priority Supplies prior to manufacture of the relevant Ordered Products; and
- pay Priority Supplies the balance owing under a relevant Purchase Order on receipt of the invoice relating to those Ordered Products, but in any event, prior to delivery.
5.3 Terms of payment - other Buyers
- A Buyer (other than a Customer) must pay Priority Supplies the full amount for each delivery of Ordered Products on receipt of the invoice relating to those Ordered Products, except to the extent that clause 5.3(b) applies
- If Priority Supplies makes a delivery of Ordered Products to a Buyer (other than a Customer), then to the extent that the sum of all amounts (including the amount of the Invoice relating to those Ordered Products) owing by the Buyer to Priority Supplies at that time (whether under these Terms or otherwise and whether or not actually payable at that time) does not exceed the Approved Credit Limit (if any), the Buyer must pay Priority Supplies the amount of that Invoice on or before the last Business Day of the month following the month in which the Invoice was issued by Priority Supplies.
5.4 Terms of payment - general
Each payment under this clause 5 must be made without set-off or counterclaim and otherwise in the manner specified in the relevant Invoice.
If an Event of Default occurs, then Priority Supplies may do one or both of the following:
- suspend performance of its obligations under these Terms until all amounts owing by the Buyer to Priority Supplies (whether under these Terms or otherwise and whether or not actually payable at that time) are paid in full; and
- charge interest on the amount outstanding at the Prescribed Rate accruing daily from and including the due date for payment until the date of payment in full.
5.6 Other rights and obligations not affected
The exercise by Priority Supplies of any of its rights under clause 5.5 does not affect.
- the Buyer’s obligations; or
- any other rights or remedies Priority Supplies may have in relation to any failure by the Buyer to pay an amount due (including a right to terminate these Terms), whether under these Terms or otherwise.
In this clause 6:
- the expressions Consideration, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and
- Supplier means any party treated by the GST Act as making a Supply under these Terms.
6.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these Terms are exclusive of GST.
6.3 Payment of GST
- If GST is imposed on any Supply made under or in accordance with these Terms, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply.
- Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with these Terms.
7. Consequences of Priority Supplies electing not to accept further Purchase Orders from the Buyer
7.1 Consequences generally
If Priority Supplies, for any reason whatsoever, determines that it wishes to stop supplying Products to the Buyer in accordance with clause 2.3 (Cessation of Supply), Priority Supplies may still enforce any right or claim that arises on, or has arisen before, the Cessation of Supply.
7.2 Obligations surviving Cessation of Supply
Despite any other provision of these Terms, on Cessation of Supply:
- all Purchase Orders will be automatically cancelled, except to the extent otherwise directed in writing by Priority Supplies; and
- the Buyer must pay Priority Supplies all amounts owing by the Buyer to Priority Supplies, when due (except where the Cessation of Supply arose due to the default of the Buyer in which case the Buyer must pay all amounts owing by the Buyer to Priority Supplies within 5 Business Days), and otherwise this clause 7, clauses 4, 5, 7, 6, 8, 9, 10.2, 10.3, 11, 12, 14, 15,16 and 17 and the terms of the Application and Guarantee (if applicable) will continue to apply after the Cessation of Supply.
The risk of loss or damage to the Products is transferred from Priority Supplies from the premises of Priority Supplies or its agent or contractor to the Buyer at the time of dispatch of the Products.
9.1 Retention of title
Title to all Products supplied by Priority Supplies to the Buyer remains with Priority Supplies and does not pass to the Buyer until the price for those Products and all other moneys owing by the Buyer to Priority Supplies on any account whatsoever (whether under these Terms or otherwise) (Amount Outstanding) is paid to and received in full by Priority Supplies in cleared funds.
9.2 Buyer’s obligations
Until title to Products supplied by Priority Supplies to the Buyer passes to the Buyer in accordance with clause 9.1, the Buyer must:
- store the Products separately from the Buyer’s own goods and those of third parties, to enable them to be readily identified as Priority Supplies’ property;
- hold the Products as the bailee and fiduciary agent of Priority Supplies;
- not supply or sell the Products to any person, other than with Priority Supplies’ prior written consent or in the ordinary and usual course of the Buyer’s business, it being acknowledged that any such supply or sale by the Buyer will be as the bailee and fiduciary agent of Priority Supplies;
- when requested by Priority Supplies, allow Priority Supplies to enter the premises where the Products are stored to inspect the Products and provide to Priority Supplies the consent of any person whose consent is required for that entry;
- keep records that relate to the Products separately identifiable and readily distinguishable from those that relate to any other goods in its possession;
- not allow any person to have or acquire any encumbrance or security interest in the Products; and
- keep the Products insured against theft, damage and destruction (and if the Buyer fails to insure the Products, Priority Supplies may do so and the Buyer must reimburse Priority Supplies for the cost of insurance).
9.3 Sale of the Products
If the Buyer sells or otherwise disposes of the Products supplied by Priority Supplies before title to them has passed from Priority Supplies to the Buyer:
- that part of the proceeds of any sale or dealing as is equal to the Amount Outstanding or if the proceeds of sale or dealing are less than the Amount Outstanding, the whole of the proceeds of sale or dealing (in either case, Priority Supplies’ Entitlement) must be held by the Buyer in a separate identifiable account on trust for Priority Supplies and must not be mixed with any other moneys of the Buyer; and
- the Buyer must account to Priority Supplies for Priority Supplies’ Entitlement, until all liability of the Buyer to Priority Supplies has been discharged.
9.4 Buyer’s rights limited
The Buyer has no right to sell the Products or deal with the Products if:
- an Insolvency Event occurs in relation to the Buyer any person who has guaranteed the obligations of the Buyer; or
- there is a Cessation of Supply for any reason.
9.5 Failure to return Products
- Subject to clause 9.5
- if the Buyer loses its right to sell or deal with theProducts under clause 9.4, then the Buyer must return the Products to Priority Supplies on written demand (and upon such return, the Buyer is no longer required to pay for those Products). If the Buyer does not return the Products to Priority Supplies within 24 hours after receipt of the demand, then without limiting any other rights or remedies Priority Supplies may have:
- Priority Supplies may, as agent of the Buyer, enter the relevant Store or any other premises where the Products are located and do all things necessary to retake possession of the Products, without liability for trespass or any resulting damage;
- Priority Supplies may keep or resell any of the Products repossessed;
- the Buyer is liable for all costs associated with the exercise by Priority Supplies of its rights under this clause 9.5, which costs are payable to Priority Supplies on demand; and
- the Buyer indemnifies and must keep indemnified Priority Supplies against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Priority Supplies or which Priority Supplies may pay, sustain or incur as a direct or indirect result of the exercise by Priority Supplies of its rights under this clause 9.5.
- If the Buyer has already paid for the relevant Products and the Cessation of Supply occurred due to an Event of Default of the Buyer or an act or omission of any third party, then Priority Supplies will refund to the Buyer all amounts paid in respect of the relevant Products less a reasonable restocking fee and the cost of freight to Priority Supplies. In all other circumstances, Priority Supplies will refund to the Buyer all amounts paid in respect of the relevant Products, without deduction.
10. Intellectual property
10.1 Use of Priority Supplies Trade Identification
Priority Supplies grants to the Buyer until any Cessation of Supply, a non-exclusive right to use the Priority Supplies Trade Identification in relation to any advertising or other promotional activities carried out by the Buyer in respect of any Products.
10.2 Ownership of Intellectual Property Rights
The Buyer acknowledges and agrees that each Intellectual Property Right is owned or entitled to be owned by Priority Supplies or a Related Body Corporate of Priority Supplies.
10.3 Buyer’s obligations
The Buyer must:
- only use the Intellectual Property Rights in accordance with the reasonable written directions of Priority Supplies (including directions relating to reproducing the Priority Supplies Trade Identification on websites or any other forum);
- not license any of the Intellectual Property Rights to or allow the use of any of the Intellectual Property Rights by any other person in any circumstances;
- not use the Priority Supplies Trade Identification in conjunction with or as part of any other trade marks, names or words, without the prior written consent of Priority Supplies;
- at all times maintain the distinctiveness of and reputation associated with the Priority Supplies Trade Identification as reasonably required by Priority Supplies;
- immediately notify Priority Supplies of, and comply with Priority Supplies’ directions in relation to, any issue, claim, demand, threat, notice of proceedings or cause of action (whether contingent, accrued or otherwise) against or involving the Buyer relating to any Intellectual Property Rights; and
- do all other acts and things that may be reasonably required by Priority Supplies to ensure the protection of the Intellectual Property Rights.
11. Return of Products
To the maximum extent permitted by Law, Products delivered by Priority Supplies in accordance with these Terms can only be returned by the Buyer to Priority Supplies for a full or partial refund to the extent that Priority Supplies, in its absolute discretion, authorises the return of the Products for that purpose in accordance with Priority Supplies Return for Credit Policy from time to time.
12. General obligations in relation to Products
In addition to all its other obligations under these Terms, the Buyer must:
- immediately inform Priority Supplies of all defects, warranty claims, customer complaints or other issues arising in relation to the Products, and comply with Priority Supplies’ reasonable directions in relation to those matters;
- not, without Priority Supplies’ prior written consent, admit liability on behalf of Priority Supplies regarding any complaint or claim, or attempt to resolve or settle any complaint or claim, made in relation to any Products;
- implement and maintain a product returns policy for the return of Products, as approved by Priority Supplies from time to time;
- ensure that all Product warranties or other terms and conditions relating to the Products and issued by Priority Supplies or any of its Related Bodies Corporate, are provided to customers of the Buyer in a manner that ensures that such warranties and terms and conditions are binding on customers of the Buyer;
- subject to clause 10, sell and promote the Products in a proper, professional and diligent manner, and otherwise act in a manner that promotes and protects the interests of Priority Supplies;
- attend and actively participate in regular reviews of any matter tabled for discussion by Priority Supplies or the Buyer, at such times and places that are specified by Priority Supplies from time to time; and
- comply with all applicable Laws.
13. Force Majeure
- The obligations of Priority Supplies will be suspended during the time and to the extent that Priority Supplies is prevented from or delayed in complying with those obligations as a result of a Force Majeure Event.
- If Priority Supplies is affected by a Force Majeure Event, it must:
- as soon as reasonably possible after being affected give the Buyer particulars of the Force Majeure Event and the manner in which Priority Supplies’ performance of its obligations will be prevented or delayed; and
- take reasonable steps to remove, overcome or minimise the effects of the Force Majeure Event, except that Priority Supplies is not obliged to settle a strike, lockout or other labour difficulty.
14.1 Limitations on liability
Subject to this clause 14 (and the terms of the Product Warranty) and to the maximum extent permitted by Law, Priority Supplies is not liable to the Buyer or to any other person for:
- any loss or damage of any kind caused by or resulting from any act or omission of the Buyer or any of its employees, agents or contractors; or
- any loss of profits or anticipated profits, economic loss, loss of business opportunity, loss or damage resulting from wasted management time or any special, incidental, indirect or other consequential loss or damage, even if notified of the possibility of that potential loss or damage and irrespective of whether it is due to negligence, breach of contract or any other cause.
14.2 Exclusion of implied warranties
Any representation, warranty, condition or undertaking that would be implied in these Terms by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
14.3 Non-excludable rights implied by statute
Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Buyer by the Trade Practices Act 1974 (Cth) or any other applicable Law that cannot be excluded, restricted or modified.
14.4 Liability for breach of non-excludable rights
To the maximum extent permitted by Law, the liability of Priority Supplies for a breach of a non-excludable condition or warranty referred to in clause 14.3 is limited, at Priority Supplies’ option, to:
- the replacement of the Products or the supply of equivalent products;
- the repair of the Products;
- the payment of the cost of replacing the Products or of acquiring equivalent products; or
- the payment of the cost of having the Products repaired.
The Buyer must indemnify Priority Supplies against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Priority Supplies or which Priority Supplies may pay, sustain or incur as a direct or indirect result of any one or more of the following:
- any breach or non-performance of these Terms by the Buyer;
- any wrongful, wilful or negligent act or omission of the Buyer or any of its employees, agents or contractors;
- the storage, handling or use of any Product sold under or in connection with these Terms, except to the extent that the relevant action, claim, proceeding, demand, liability, loss, damage, expense or cost was caused by the wrongful, wilful or negligent act or omission of Priority Supplies or any of its employees, agents or contractors; and
- any injury or loss sustained by any person who is employed or engaged by the Buyer as an employee, agent or contractor for the purpose of (possibly among other things) the performance by the Buyer of its obligations under these Terms and who suffers any injury or loss arising out of or in the course of such employment or engagement.
16.1 Entire understanding
- These Terms contains the entire understanding between the parties concerning the subject matter of the Terms and supersede all prior communications between the parties. In particular these Terms supersede all terms or conditions submitted by the Buyer. which will not apply to the provision of Products except to the extent expressly agreed by Priority Supplies in writing.
- Each party acknowledges that, except as expressly stated in these Terms, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the subject matter of these Terms.
Any provision of these Terms which is invalid in any jurisdiction must, in relation to that jurisdiction:
- be read down to the minimum extent necessary to achieve its validity, if applicable; and
- be severed from these Terms in any other case, without invalidating or affecting the remaining provisions of these Terms or the validity of that provision in any other jurisdiction.
16.3 No variation
These Terms cannot be amended or varied except with the prior written consent of Priority Supplies.
16.4 Governing law and jurisdiction
- These Terms are governed by and must be construed in accordance with the laws in force in Victoria.
- The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance or subject matter.
In these Terms:
Approved Credit Limit means the dollar amount specified by Priority Supplies in its notice to the Applicant accepting an Application, which dollar amount may be varied from time to time by Priority Supplies without any need to give notice to the Buyer;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria;
Business Hours means between the hours of 9am and 5pm on a Business Day;
Buyer means the person buying the Products;
Change of Control means, in relation to a body corporate, the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts):
- control the composition of more than one half of the Buyer’s board of directors;
- be in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the members of the Buyer; or
- hold or have a beneficial interest in more than one half of the issued share capital of the Buyer;
Controller means, in relation to a person:
- a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person’s property; or
- anyone else who (whether or not as agent for the person) is in possession, or has control, of that person’s property to enforce an encumbrance;
Corporations Act means the Corporations Act 2001 (Cth);
Credit Report and Credit Reporting Agency have the meanings given to those terms in the Privacy Act 1988 (Cth);
Customer means the retail end-users of the Products purchased directly from Priority Supplies;
Event of Default means, in relation to the Buyer, the occurrence of any one or more of the following events or circumstances:
- the Buyer fails to comply with any of its obligations under these Terms;
- an Insolvency Event occurs in relation to the Buyer (or any person comprising the Buyer);
- a Change of Control occurs in relation to the Buyer (or any person comprising the Buyer), other than with the consent of Priority Supplies;
- a notice of deregistration of the Buyer is given under sections 601AA(5) or 601AB(5) of the Corporations Act;
- the Buyer fails to pay by the due date any amount due and payable by it under these Terms;
- the Buyer becomes unable to perform all of its obligations and take all actions contemplated under thesde Terms; and
- the Buyer ceases or threatens to cease to carry on business or a substantial part of it
Force Majeure Event means any act, event or cause, other than a lack of funds:
- as a direct or indirect result of which, the party relying on it is prevented from or delayed in performing any of its obligations under these Terms; and
- that is beyond the reasonable control of that party;
General Terms means these terms and conditions, other than the Special Conditions;
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental, local governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute;
GST has the meaning given to that term in the GST Act;
including or any form of that word must be construed as if it were followed by “(without being limited to)”;
- being in liquidation or provisional liquidation or under administration;
- having a Controller or analogous person appointed to it or any of its property;
- being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
- being unable to pay its debts or being otherwise insolvent;
- becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
- any analogous event or circumstance under the laws of any jurisdiction;
Intellectual Property Rights means all present and future intellectual and industrial property rights in the Products conferred by Law and wherever existing, including:
- the Priority Supplies Trade Identification;
- patents, designs, copyright, rights in circuit layouts, know how, domain names, inventions, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- any application or right to apply for registration of any of these rights;
- any registration of any of these rights or any registration of any application referred to in paragraph (c); and
- all renewals and extensions of these rights;
- principles of law or equity established by decisions of courts;
- statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
- requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;
Ordered Products means the Products specified by the Buyer in a Purchase
Order that has been accepted by Priority Supplies;
person includes a natural person and any body or entity whether incorporated or not;
Personal Information means information of or relating to a person and, where applicable, includes “personal information” (as that term is defined in the Privacy Act 1988 (Cth)) of or relating to that person;
Priority Supplies means Priority Supplies Pty Ltd ABN 71 973 563 617 of Devon Street, Burnie, Tasmania; Priority Supplies
Trade Identification means the trade marks, service marks, symbols, branding, logos and other trade indicia (whether registered or not) owned or controlled by Priority Supplies or any of its Related Bodies Corporate and used in connection with the business conducted by Priority Supplies and its Related Bodies Corporate under the “Priority Supplies” name (or any name which replaces the “Priority Supplies” name);
Prescribed Rate means the rate that is 2% per annum above the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic);
Products means the products manufactured or supplied by or at the request of Priority Supplies or any of its Related Bodies Corporate, but only to the extent that those products are authorised by Priority Supplies from time to time for purchase by the Buyer under these Terms;
Product Warranty means any express written warranty offered or provided by Priority Supplies to a Buyer from time to time;
Purchase Order means an order for Products that is in the form specified by Priority Supplies from time to time, which must include the following details:
- product code for each Ordered Product;
- quantity of each Ordered Product required; and
- Delivery Address for the Ordered Products;
Related Body Corporate has the meaning given to that term in the Corporations Act;
Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions imposed, assessed or charged by any Government Agency, together with all interest, penalties, fines, expenses and other additional statutory charges resulting from a failure to pay when due the full amount of any such imposition; and
Terms means the General Terms as amended by Priority Supplies from time to time (including the Special Conditions, if applicable).