- 1. In the event that the Terms of Trade herein is extended, the Customer hereby agrees with NavMedia Pty Ltd t/as OnePoint, ABN 012 345 678, to be bound by the following provisions set out in these Terms.
- Supplying and Security for Payment
- 2. The Supplier shall accept orders from the Customer for delivery of all goods and services (“the Product”) to the Customer at the prices specified in the Supplier’s price list provided or quote given to the Customer. The prices of the Product specified or quoted are inclusive of GST and delivery costs incurred by the Supplier. Such orders placed by the Customer with the Supplier shall be in the manner and form approved by Supplier as orders placed in the manner and form not approved may not be accepted by the Supplier.
- 3. Once the orders for delivery of Product are accepted by the Supplier the Customer shall be responsible for payment for the Product supplied, plus GST and delivery costs, at the order of the Customer or any other person acting on behalf of the customer.
- 4. The Supplier shall use its best efforts to deliver the Product to the Customer on a timely basis. However, the Supplier shall not accept responsibility or liability for any costs, delays or damages incurred directly or directly due to delays in transportation of Product or caused by a third party or by any events or circumstances outside the control of the Supplier. A failure of the Supplier to have the Product ready for delivery on a timely basis shall not entitle the Customer to be relieved of any obligation to accept the Product and pay for them.
- 5. Notwithstanding delivery of goods to the Customer, the title in the Product shall remain with the Supplier until the price (inclusive of GST and delivery costs) thereof has been paid in full. However, the risk of loss or damage to the Product shall pass on the Customer upon delivery.
- 6. The Customer acknowledges that it is in possession of the Product as bailee for the Supplier from the time of its delivery until all money due to the Supplier has been paid by it.
- 7. Until payment the Customer agrees to store, keep or use the Product on its premises in a manner where the Product is readily identifiable as the Supplier’s goods.
- 8. The Customer’s right to possession of the Product, including any stock on floor referred to herein, shall cease if it does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle a person to present a petition for winding up or bankruptcy of the Customer.
- 9. The Customer warrants that it is not at the time of entering into this agreement insolvent and knows of no circumstances which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
- 10. Payment in full (including GST and delivery costs) shall be made by the Customer within thirty (30) days of the date of invoice, unless otherwise agreed in writing with the Supplier, and the method of such payment must be approved by the Supplier.
- 11. The Supplier may vary the Product prices at any time to take effect in respect of orders made by the Customer after the Supplier has sent to the Customer no less than thirty (30) days written notice of such variation.
- 12. Overdue accounts shall attract interest at the rate of 1.25% per month (or at such other rate as the Supplier shall at any time giving at least one (1) months written notice to the Customer as being the applicable rate) calculated from thirty (30) days after the date of the invoice until the date of payment thereof. Such interest payable shall be cumulative and debited to the Customer’s account each month without further notice.
- 13. Overdue accounts shall be subject to an account handling fee of $10.00 per month, which will be debited to the Customer’s account without further notice, until account is settled and/or as agreed in writing by the Supplier.
- 14. If an account becomes overdue and is not settled within a reasonable period, which period shall be determined in the absolute discretion of the Supplier, the Supplier shall suspend all work in progress until the account (including all fees, reasonable expenses, charges and costs) is paid in full and/or terminate this agreement in accordance with the relevant provisions herein. On unpaid and/or overdue invoices the customer will incur all debt collection and/or legal recovery costs.
- 15. In the event that the Product are resold by the Customer before the Customer has paid all monies due to the Supplier in respect to the Product, the entire proceeds from such resale shall be held by the Customer in the trust for the Supplier and the Customer shall apply such proceeds for payment of the said monies due to the Supplier.
Risk and Insurance
- 16. The Customer will assume all risk of loss or damage to any Product ordered at the time the Product leaves the Supplier’s premises, including the location of the stock on floor referred to herein.
- 17. Until title in the Product passes to the Customer, the Supplier must keep the Product fully insured in the Supplier’s name exclusively.
Stock and Return of Product
- 18. The Supplier shall keep on hand a minimum quantity of Product as agreed from time to time between the Customer and the Supplier and referred to as “stock on floor” at a location of the Supplier’s choice.
- 19. The Customer acknowledges and agrees to pay the cost, including all fees and charges, relating to storing the stock on floor.
- 20. The Customer agrees to grant the Supplier the “put option” to require the Customer to purchase all stock on floor and the Supplier agrees to accept the put option. The parties agree that with automatic effect from the first day of the put option period, which commences on the date of the notice given by the Supplier in accordance with this clause and expires within two (2) months therein, the Supplier may at its discretion require the Purchaser to purchase all stock on floor on the terms provided in this clause. If, during the put option period, the Supplier intends to validly exercise the put option the Supplier must give to the Purchaser a written notice stating its intention to do so, the put option price at which the Purchaser is to purchase all stock on floor and any other relevant information for the put option to take effect. The Customer has three (3) months from the date of the written notice to purchase all stock on floor and pick up or take delivery of all stock on floor at the Customer’s expense.
- 21. Notwithstanding the clauses herein, the Customer does not have the right to return the Product to the Supplier once its order is accepted by the Supplier.
- 22. The Customer shall comply with all relevant legislation in the State/Territory and Commonwealth legislation relating to the use of Product, and the Supplier shall comply with all relevant legislation in the State/Territory and Commonwealth legislation relating to the supply of Product.
Warrant and Support
- 23. The Supplier and the Customer warrant that they shall, jointly and severally, comply with the relevant provisions of the Commonwealth Trade Practices Act 1974 and the Sale of Goods Act of the relevant State/Territory.
- 24. The Supplier’s sole responsibility under the warranty shall be to either repair or replace at the Supplier’s option the defective or failed Product during the warranty period if the Supplier has upon inspection found such Product to be defective. If the Supplier ascertains that the Product is not defective within the terms of the warranty then the Customer shall pay the Supplier all costs of handling and repairs at the Supplier’s then prevailing repair rates. The Supplier warrants that the use of any or all of the intellectual property according to the terms and conditions of this Agreement shall not result in the infringements of proprietary rights of third parties.
- 25. The warranty is contingent upon proper use, installation and application of the Product and shall not apply to defects or failures resulting directly or indirectly from causes not within the Supplier’s reasonable control, defects or failures due to accident, neglect, misuse, or failure or defect in the use of related Product not provided by the Supplier. Also the warranty shall not apply to any Product which has been subject to unusual physical stress or if any party other than the Supplier or its authorised representative modifies, adjusts, repairs or attempts repair of Product.
Insurance and Liability
- 26. The Customer shall carry full and customary liability and other insurance to cover claims made in respect of the Customer’s activities within the scope of this agreement.
- 27. In no event shall the Supplier be liable for special, indirect or consequential damages or for any loss, incurred directly or indirectly, of business or profit even if the Supplier has been advised of the possibility of such damages or loss. The Supplier’s total liability for damages hereunder whether in contract or tort shall be limited to the total amount paid by the Customer to the Supplier for the Product giving rise to the Purchaser’s claim.
Relationship and Indemnity
- 28. The relationship between the Customer and the Supplier under this agreement is that of customer and supplier in respect of the Product. Nothing in this agreement shall be construed as constituting any of the parties a partner, agent or representative of the others. No party shall have any fiduciary obligations to the other arising out of this agreement. The Customer shall not in any way pledge the credit of the Supplier or implicate or involve the Supplier in any liability whatsoever.
- 29. The Customer shall not have the right, power or authority to make any representation, guarantee or warranty on behalf of the Supplier except as specifically provided in this agreement. The Customer must promptly advise the Supplier in writing of any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, charges and expenses which may be brought or claimed against the Customer or the Supplier or in respect of which the Customer or the Supplier may become liable arising out of the supply or other use of the Product by the Customer, its servants or agents. The Customer indemnifies the Supplier against any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs (including solicitor and Customer costs), charges and expenses arising, directly or indirectly, out of the supply or other use of the Product by the Customer, its servants, agents or contractors. The defence of any litigation to which this clause applies is to be under the control of the Customer, its solicitors and counsel, and all legal costs and expenses of any such litigation is borne by the Customer and the Supplier.
Credit Check and Termination
- 30. The Customer hereby authorises the Supplier to make inquiries, from time to time, as to the credit and financial status relating to the Customer and/or its Director(s) and/or the undersigned herein including obtaining credit reference reports from financial bodies and/or credit reporting agencies.
- 31. The Supplier may, at its absolute discretion, withdraw, reduce or terminate the credit facility to the Customer and/or this agreement by giving written notice of its decision.
- 32. Upon the termination of this agreement the Customer shall immediately pay to the Supplier all moneys otherwise payable to the Supplier in full and without any deduction or set-off.
- 33. Upon termination of this agreement in accordance with the preceding provisions, the Customer shall at its expense send to the Supplier or otherwise dispose of in accordance with the directions of the Supplier all of the Product then in its possession whose legal and equitable ownership is retained with the Supplier in accordance with clauses 11, 12, 13, 14 and 15.
- 34. The Customer must not assign all or any of its rights in this agreement without the prior written consent of the Supplier, which consent the Supplier may grant or not in its absolute discretion.
- 35. The Supplier may at its discretion assign all or any of its rights in this agreement.
- 36. Failure of either party to insist in any instance upon strict performance by the other of any provision of this agreement shall not be construed or deemed to be a permanent waiver of such or any other provision of this agreement. The Supplier’s rights and remedies shall be cumulative and may be exercised singularly or concurrently.
- 37. This agreement is the complete and exhaustive statement of the agreement between the parties and supersedes all prior oral or written communications, proposals, agreements, arrangements, representations, statements, negotiations and undertakings between the parties with respect to the Product.
- 38. Notwithstanding the preceding clause, if the agreement headed “Supply and License Agreement” (“the Agreement”) was executed between the parties prior to or at the same time as this agreement or in the future in relation to the supply and/or licensing of the Product, then the provisions in Agreement supersedes those in this agreement.
- 39. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Supplier, it is unable to perform in whole or in part any obligation under this agreement the Supplier is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not be liable to the Purchaser in respect of such inability.
- 40. Agreement shall be governed by the laws of New South Wales, in Australia. Subject to the dispute resolution clause set out below, the parties submit to the exclusive jurisdiction of the courts of New South Wales, and waive any right it might have to claim that those courts are an inconvenient forum.
- 41. The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this agreement. Unless otherwise agreed in writing, the following process must be followed where there is a dispute.
- 42. In the event of any dispute between the parties arising out of or relating to this agreement the dispute will be referred to a director of each party or any senior executive of such party nominated by the director, and such persons will negotiate together in good faith with a view to resolving the dispute.
- 43. The dispute shall be referred in writing by the director of the complaining party and it must state the nature of the dispute, the outcome required by the complaining party and the action the complainant believes will settle the dispute.
- 44. If a dispute will not be resolved within 10 Business Days after both the directors are notified of a dispute, either of the directors will by written notice advise the other that his party seeks to have the dispute submitted to mediation.
- 45. A mediator shall be appointed either by agreement between the directors of the parties or, in the event of their failure to agree upon a mediator within 5 Business Days, by the President for the time being of the Law Society of State/Territory where the Product was delivered. Both parties must attend the mediation and make a genuine effort to resolve the dispute
- 46. Proceedings of the mediator will be as informal as is consistent with the proper conduct of the matter and will allow the mediator to communicate privately with the parties and/or with their lawyers.
- 47. The parties to the mediation agree that everything that occurs before the mediator will be in confidence and in closed session, all discussions will be without prejudice, and no documents brought into existence specifically for the purpose of the mediation process will be called into evidence in any subsequent litigation by either of the parties.
- 48. The parties to the mediation will bear the mediation costs on an equal basis and grant immunity from liability to the mediator.
- 49. The parties will report back to the mediator within 14 Business Days, on actions taken, based on the outcome of the mediation.
- 50. Where any of the parties believe the mediator or any of the other parties is not acting in accordance with these provisions relating to dispute resolution, the party may withdraw from the mediation.
- 51. No party shall have any cause of action against the mediator or arising out of the conduct of the mediation.
- 52. The mediator shall have no power to make any decision, determination or recommendation binding on the parties to resolve the dispute.
- 53. Pending resolution of any dispute or difference, the parties shall continue to perform their respective obligations pursuant to the provisions of this agreement.
54. Nothing contained in these provisions relating to dispute resolution shall deny either of the parties the right to seek injunctive relief from an appropriate court, where failure to obtain such relief would cause irreparable damage to the party concerned.
The term “Business Day” used in the preceding clauses means any day other than a public holiday in State/Territory where the Product was delivery and between 9am and 5pm Monday to Friday.
- 55. Any notice to be given pursuant to the terms of this agreement shall be in writing addressed to the party to whom it is given and left at or sent by e-mail, facsimile transmission or pre-paid registered airmail post to the last known address of such party or the address as it may from time to time notify to the other and shall be deemed to be served on the day so left or transmitted by e-mail or facsimile machine or on the tenth (10th) day after it is so posted.