Terms & conditions of Supply

Allflex Australia I 1300 138 247 I allflexcs@msd.com I www.allflex.com.au
ABN 61 005 237 472
Terms and Conditions of Supply

  1. Definitions
    1.1 In these terms and conditions, unless the context otherwise requires:
    ‘Customer’ means the person with whom the Company has contracted for the supply of any Goods or services, whether an end user of the Goods or services or a reseller of the Goods or services.
    ‘Company’ means Allflex Australia Pty Ltd.
    ‘Force Majeure’ means any cause or circumstance beyond the Company’s reasonable control, including but not limited to, any lack of production capacity or raw materials, strikes, lock-outs, labour disputes, fires, floods, acts of God or public enemy, malicious or accidental damage, delays
    in transport, breakdowns in machinery or restrictions or prohibitions by any government or any semi-government authorities or embargoes.
    ‘Goods’ means the products, components, items or goods which the Company contracts to supply
    to or for the Customer or to which any services undertaken for the Customer relates.
    ‘GST’ means the Goods and Services Tax as defined in the GST Act.
    ‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth)
    ‘Insolvency Event’ means: a party resolves to be wound up or dissolved; has a winding up application
    presented against it; has a controller, receiver, receiver/manager or administrator appointed to it, or over all or part of its business or assets; has a liquidator or a provisional liquidator or bankruptcy trustee appointed to it; is insolvent or unable to pay its debts when they fall due; is bankrupt or commits any act of bankruptcy; enters into any arrangement or assignment for the benefit of its creditors; or anything analogous, or having substantially similar effect, to the occurrence of these events in relation to a party.
    ‘Taxable Supply’ has the meaning given to that term by the GST Act.
  2. Supply
    2.1 All Goods and services will be supplied to or for the Customer on these terms and conditions only, unless the Company agrees in writing to any change to these terms and conditions.
    2.2 The Company will not be bound by any terms and conditions included in the Customer’s order, or otherwise proposed by the Customer, unless the Company expressly notifies the Customer writing that it accepts those terms and conditions, and any supply made by the Company to the Customer does not constitute an implied acceptance by the Company of any terms or conditions offered or proposed by the Customer.
    2.3 The Company is not obliged to accept any order from the Customer. An order is only binding once the Company, acting in its absolute discretion, has notified the Customer in writing that the Company has accepted the Customer’s order or that the Company agrees to the Customer’s order. Without limiting the foregoing, the Company may inform the Customer in writing or verbally that it will no longer process any orders from the Customer. Any acknowledgement provided by the company to the Customer that it has received an order is not a notification of acceptance or agreement to the Customer’s order.
    2.4 Each time the Company accepts or agrees to an order from the Customer (Accepted Order), a separate agreement is formed for that Accepted Order incorporating these terms and conditions. In connection with any Accepted Order references to these terms and conditions are to be interpreted to these terms and conditions and the order.
    2.5 The Customer is not obliged to request any orders from the Company. Without limiting the foregoing, the Customer may inform the Company in writing or verbally that it will no longer request any orders from the Company.
  3. Prices and Payment
    3.1 All prices quoted by the Company are, unless expressly stated to the contrary, exclusive of all freight and insurance costs and the Customer must pay the Company these costs by the due date for the payment of the relevant Goods.
    3.2 All prices quoted by the Company are, unless expressly stated to the contrary, exclusive of taxes, duties and levies which may be assessed or levied in respect of the supply of the Goods or services supplied to or for the Customer, and all such costs, taxes, levies and duties are payable by the Customer in addition to the price by the due date for payment of the relevant Goods or services.
    3.3 Where the Company makes a Taxable Supply under or in connection with these terms and conditions to the Customer and the consideration otherwise payable for the Taxable Supply is not specifically stated to include GST, the Customer must pay the Company as an additional amount the amount of any GST payable on the Taxable Supply.
    3.4 The amount of any cost recovery or compensation for costs under or in connection with these terms and conditions is reduced by any Input Tax Credits (within the meaning of the GST Act) available in respect of those costs.
    3.5 The Company will invoice the Customer from time to time for payment for Goods and services supplied or to be supplied.
    3.6 The Customer must pay an invoice issued by the Company by the last business day of the month following the month of invoice, unless agreed otherwise in writing, and in accordance with the payment directions specified on the invoice, and if earlier, must pay the Company in advance of any delivery of Goods or performance of services, where relevant in accordance with clause 3.7.
    3.7 The Customer must pay for Goods or services in advance prior to delivery of each Accepted Order, unless the Company agrees in writing that the Customer is entitled to make payment in arrears for one or more Accepted Orders.
    3.8 The Company may withdraw any agreement for payment in arrears for any future orders, which the Company has yet to accept or agree to, at anytime by notifying the Customer by email or otherwise in writing. The Company may also withdraw its agreement for payment in arrears at anytime for any existing Accepted Orders by notifying the Customer by email or otherwise in writing and in such circumstances, the Customer is entitled to terminate the affected existing Accepted Order(s) by notice in writing within 7 days of the Company’s email withdrawing the payment in arrears, unless the Company has withdrawn its agreement for payment in arrears for any of the following reasons: if the Customer has failed to pay any amounts due under these terms and
    conditions by the due date; if the Company reasonably considers there has been an adverse change in the Customer’s financial position; if the Company reasonably considers there is a risk of delayed or non-payment for the Goods or services; or where, relevant, if the Customer’s security for payment is exhausted or is no longer in effect without the agreement of the Company.
    3.9 The Company may at any time require the Customer to provide security for payment as a condition to the Company agreeing to or accepting any future order.
    3.10 If the Customer fails to pay the Company any amount by the due date for payment, without limiting any other remedies available to the Company, the Company may, on notice to the Customer (notice to be given verbally, by email or otherwise in writing), defer delivery of any Goods or services, which the Company has agreed to supply, until all outstanding amounts are paid.
    3.11 The Company is entitled to charge the Customer interest on all overdue amounts at a rate equal to eight per centum (8%) per annum for any amounts that remain unpaid by the Customer after the due date, until such amount is paid, and the Customer must pay such interest within 7 days of the Company’s demand for payment of interest.
    3.12 The Company is also entitled to recover its costs incurred in the collection of overdue amounts and the Customer must pay such amounts within 7 days of the Company’s demand for payment of such amounts.
    3.13 The Customer must not retain or withhold payment owing to the Company. The Company expressly excludes any right of the Customer to set-off amounts due or alleged to be due from the Company to the Customer against amounts due or alleged to be due from the Customer to the Company.
    3.14 Receipt of a cheque, bill of exchange, or other negotiable instrument by the Company does not constitute payment until cleared funds are received in the Company’s account.
  4. Delivery
    4.1 Delivery to the Customer is deemed to be made when the Goods are delivered to the nominated address agreed between the parties or if earlier, when the Goods are collected by the Customer, its carrier or agent from the Company.
    4.2 The Goods may be delivered in instalments and each such delivery shall be construed as a separate contract for which prices will be apportioned pro rata.
    4.3 The Company is not liable for failure to deliver the Goods or to carry out any services or for any delay in respect thereof or to comply with any of these terms due to an event of Force Majeure. During the continuance of an event of Force Majeure the Company’s obligations under these terms affected by such an event are suspended.
  5. Risk and Insurance
    5.1 The risk in the Goods passes to the Customer on delivery.
    5.2 Where the Customer returns Goods to the Company, the Goods are at the risk of the Customer until the Goods have been received and signed for by a representative of the Company at its premises.
  6. Title
    6.1 Notwithstanding that credit may be allowed or extended to the Customer for payment of the Goods or that risk may pass to the Customer, legal and equitable title to and ownership of the Goods does not pass to the Customer until all amounts payable to the Company in respect of those Goods have been paid in full, and prior to such payment being made, the Customer holds the Goods as bailee and the Customer accepts this appointment as bailee.
    6.2 Until title to the Goods passes, the Company may enter the Customer’s premises (or the premises of a related body corporate or agent where the Goods are located) without liability for trespass or any resulting damage and take possession of the Goods and subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth) (PPSA) keep or resell any Goods repossessed.
    6.3 The interest of the Company in the Goods and proceeds from the sale of the Goods by the Customer to a third party is a security interest. The Customer consents to the Company registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Company to facilitate the registration. Until title in the Goods has passed to the Customer, the Customer agrees not to in any way assign, charge, lease or deal with the Goods in such a manner as to create a security interest over the Goods in the favour of the Customer or any third party. This clause will not prohibit the Customer from selling the Goods in the ordinary course of business.
  7. Proprietary Rights, Drawings and Confidentiality
    7.1 Any drawings, illustrations or manuals which are produced by the Company at its discretion as an aid to providing services to the Customer shall be and remain the exclusive property of the Company.
    7.2 The Customer acknowledges that the Company has intellectual property rights (including but without limitation, patents, registered designs and trademarks) in respect of the Goods and undertakes to not infringe those rights.
  8. Limitation of Liability
    8.1 To the extent permitted by Australian Consumer Law, the Company’s liability under or in connection with these terms or conditions, whether arising in contract, tort (including negligence) or otherwise is limited to:
    a. in the case of liability in connection with a supply of Goods, the Company doing any one or more of the following (at its election):
    i. replacing the Goods or supplying equivalent goods or repairing the Goods; or
    ii. paying the cost of replacing the Goods or of acquiring equivalent goods or of having the Goods
    repaired; or
    b. in the case of liability in connection with a supply of services, the Company doing any one or more of the following (at its election):
    i. supplying the services again; or
    ii. paying the cost of having the services supplied again.
    8.2 The Company has no liability under or in connection with these terms or conditions, whether arising in contract, tort (including negligence) or otherwise, for loss of profit, loss of revenue, loss of business, loss of opportunity, loss of anticipated savings, damage to goodwill or reputation or indirect or consequential loss of any kind whatsoever, except that if the Australian Consumer Law provides that the Customer is a consumer in relation to any Goods or services supplied under these terms and conditions, then this clause does not apply to any liability of the Company for a failure to comply with a consumer guarantee for such Goods or services.
    8.3 The Customer will indemnify the Company in relation to any claims and any losses, damages, costs and expenses, made against or suffered or incurred by the Customer arising out of an act or omission of the Customer under or in connection with these terms and conditions or any false, misleading or deceptive representation made by the Customer in respect of the Goods or services to any person or the misuse of the Goods by the Customer or any person, and whether alone or in combination with any other products or substances, but excluding to the extent caused or contributed by the Company’s breach or negligent, reckless or wilful act or omission.
  9. Variation, Cancellation and Termination
    9.1 Any requested variation by the Customer of any Accepted Order or any requested cancellation by the Customer of any Accepted Order, which is not exercised by the Customer pursuant to its rights under Australian Consumer Law or pursuant to its rights in contract law to terminate for the Company’s breach (Cancellation for Convenience) is at the sole discretion of the Company, and not binding on the Company unless agreed to by the Company in writing. Performance or partial performance of any variation or Cancellation for Convenience made otherwise than in writing and accepted by the Company is not deemed a waiver or variation under these terms and conditions. The Customer acknowledges that no Cancellations for Convenience are accepted by the Company for any specially marked orders or if production of the Goods has commenced for Accepted Orders. If the Company accepts a variation or Cancellation for Convenience, then the Company may require the Customer to reimburse the Company for all costs it incurs as a result of the variation or cancellation for Convenience.
    9.2 The Company is not liable to the Customer or any other person claiming through or under the Customer for any errors or omissions in the Goods or services to the extent arising partly or wholly from an error in the Customer’s order.
    9.3 The Company is entitled to terminate any Accepted Order by immediate notice in writing if:
    a. the Customer fails to pay amounts due and owing under or connection with any Accepted Order by the due date for payment, and if the Customer fails to remedy the non-payment within 14 days of the Company’s request; or
    b. for reasons beyond the reasonable control of the Company it is not feasible or practicable for the
    Company to provide the Goods or services under an Accepted Order and if the Customer has paid for the Goods or services in advance, which are terminated prior to supply or performance by the Company, the Company will promptly refund the Customer the amount for the Goods or services terminated prior to their supply or performance.
    9.4 If either party suffers an Insolvency Event, the other party may terminate an Accepted Order with immediate effect, by written notice to the other party.
  10. Returns
    10.1 Goods are not accepted for return without the quotation of a valid customer return number issued by the Company. This does not affect the Customer’s rights to return Goods under Australian Consumer Law or clause 8.1.
    10.2 The Company at its sole discretion may charge the Customer, and if charged the Customer must pay, a restocking fee of five percent (5%) of the pre tax cost of the Goods, if the Company accepts Goods for return, which were incorrectly ordered by the Customer, or in other circumstances where the Customer is not entitled to return the Goods under Australian Consumer Law or otherwise pursuant to an agreement incorporating these terms and conditions.
  11. Governing Law
    11.1 These terms and conditions will be governed by the laws of Queensland and the laws of the Commonwealth of Australia which are in force in Queensland.
    11.2 Each party submits to the non-exclusive jurisdiction of the Courts of Queensland and relevant Federal Courts and Courts competent to hear appeals from those Courts.
  12. PPSA related provisions
    12.1 To the extent the law permits, the Customer waives its rights to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement).
    12.2 The parties agree that these terms and conditions and an order and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to third parties, except to related bodies corporate and professional advisers, contractors and agents of each party and their related bodies corporate, on a need to know basis, and except to the extent disclosure is permitted by these terms and conditions or required by the rules of a stock exchange or by law or by a regulatory authority or government agency. The Customer agrees not to exercise its rights to make any request of the Company under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
    12.3 To the extent the law permits: (a) for the purposes of sections 115(1) and 115(7) of the PPSA: (i) Company need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and (ii) sections 142 and 143 are excluded; and (c) for the purposes of section 115(7) of the PPSA, the Company need not comply with sections 132 and 137(3) of the PPSA.
  13. Other
    13.1 In the event that any provision or provisions of these terms and conditions are invalid for any reason whatsoever (including, but not limited to, by virtue of the provisions of any statute or rule of laws) the remaining provisions of these terms and conditions remain in full force and effect.
    13.2 The Company is entitled to vary these terms and conditions on not less than 14 days’ prior written notice by email or otherwise in writing to the Customer, with such varied terms and conditions to apply to any orders placed by the Customer after the expiry of such notice.

For any questions regarding the supply terms and conditions, please reach out to our customer service team below or via contact us.

ALLFLEX AUSTRALIA PTY LTD.

33 Neumann Road, Capalaba, Qld 4157

Telephone 1300 138 247 or +61 (0)7 3245 9100

Fax +61 (0)7 3245 9110

Email allflexcontact@msd.com