Terms of service

NON-WHOLESALE CUSTOMERS

Disclosure of Key Terms relating to the supply ofgoods or services to consumers

Section 47A Fair Trading Act 1987 (NSW) (“the Act”)

Pursuant to section 47A of the Act, a supplier must, before supplying a consumer with goods or services in NSW, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer.

The following contains a summary of key terms in the attached Trading Terms between Precise Medical Supplies Pty Ltd (Us, We, Our) and the Customer (You), which You should be made aware of as per the requirements of the Act.  

Words not defined in this summary have the same meaning as set out in the Terms:

1. Clause 3.2 - Exclusion of Warranties

This clause excludes all warranties not set out in the Terms or any other warranty document (to the extent possible) and makes clear that We are not liable to compensate you for:  

  1. Any increased costs or expenses you may incur; 
  2. Any loss of profit, revenue, business, contract or anticipated savings; 
  3. Any loss or expense resulting from a claim by a third party; or 
  4. Any special, indirect or Consequential Loss or damage of any nature.

2. Clause 4 – Limitation of Liability

This clause limits the remedies available to You if the Goods or services provided by Us are faulty, for example we may replace the Goods or provide a refund at our election. 

This clause also seeks to limit the timeframe for any claim by You relating to the short delivery of Goods. 

3. Clause 14 – Indemnity 

This clause requires You to indemnify Us against any loss or damage We may suffer as a result of your breach of our Trading Terms, which means You will pay us any loss or damage We suffer. 

Precise Medical Supplies Pty Ltd

ACN 626 539 482

(Company)

Trading Terms and Conditions

For Sale of Goods

These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by the Company to a Customer from time to time. Any supply of Goods by the Company to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by the Company (‘Agreement’) and any such supply does not give rise to a new or separate agreement.

1. Interpretation

In these Terms unless the contrary intention appears:

Additional Charges includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Company arising out of the sale of the Goods.

Consequential Loss means increased costs or expenses; loss of revenue; loss of profit or anticipated profit; loss of business; loss of business reputation; loss of opportunities; loss of anticipated savings; loss of goodwill; loss or expense resulting from a claim by a third party; special or indirect loss or damage of any nature whatsoever caused by the Company’s failure to complete or delay in completing the order to deliver the Goods; and any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly and naturally from that breach.

Customer means the person to or for whom the Goods are to be supplied by Company.

Force Majeure Event means any event outside the reasonable control of the Company including acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, interruptions of transport, government action, pandemic, epidemic or any other cause whatsoever, whether or not of a like nature to those specified herein.

Goods means the goods sold to the Customer by Company and includes any services provided by Company to Customer.

Intellectual Property Right means any patent, registered design, patent, trademark, copy-right, trade secret or any other proprietary right of the Company, registered or unregistered, in any country.

PPSA means the Personal Property Securities Act 2009 (Cth).

Purchase Price means the list price for the goods as charged by Company at the date of delivery or such other price as may be agreed by Company and the Customer prior to delivery of the Goods.

2. Order for Goods

2.1 An order given to Company is binding on Company and the Customer, if:

2.1.1 a written acceptance is provided by or on behalf of Company; or

2.1.2 the Goods are supplied by Company in accordance with the order.

2.2 An acceptance of the order by Company is then to be an acceptance of these Terms by Company and the Customer and these Terms will override any conditions contained in the Customer’s order. Company reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on Company until accepted by it.

2.3 An order which has been accepted in whole or in part by Company cannot be cancelled by the Customer without obtaining the prior written approval of Company, which it may refuse in its absolute discretion.

3. Warranties

3.1 Other than as set out in the remainder of this clause 3, and to the extent permitted by law, we do not provide any  warranties in respect to  any Goods not manufactured by  Us, however such Goods may be independently covered by a warranty given or implied by the original manufacturer.

3.2 If the Customer is deemed to be a consumer pursuant to the Australian Consumer Law, then:

3.2.1 For Goods: 

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. 

3.2.2 For Services:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

3.3 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms or in another warranty document given by the Company are excluded and the Company is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:

    1. any increased costs or expenses;
    2. any loss of profit, revenue, business, contracts or anticipated savings;
    3. any loss or expense resulting from a claim by a third party; or
    4. any special, indirect or Consequential Loss or damage of any nature whatsoever caused by Company’s failure to complete or delay in completing the order to deliver the Goods.

4. Limitation of Liability 

4.1 The Company’s liability is limited, to the extent permissible by law and at the Company’s option, to;

in relation to the Goods:

4.1.1 the replacement of the products or the supply of equivalent products; 

4.1.1.1 the repair of the products; 

4.1.1.2 the payment of the cost of replacing the products or of acquiring equivalent products; or

4.1.3 the payment of the cost of having the products repaired.

4.1.2 Where the Goods are services:

4.1.2.1 the supply of service again; or

4.1.2.2 the payment of the cost of having the services supplied again.

5.1 Delivery

5.1.1 The times quoted for delivery are estimates only and Company accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Company.

5.1.2 Risk in accepting the Goods passes on delivery to the Customer.

5.1.3 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods. 

6. Defects and Returns

6.1 To the extent permitted at law, the Customer must inspect the Goods as soon as possible on or after delivery and notify the Company in writing within 5 days of delivery of any claims for damages resulting from any defect in the merchandise discovered by Customer, including, without limitation, claims related to shortages, quality, or specification.

6.2 If the Company accepts any shortages, or that Goods are defective or damaged, the Company agrees to supply the short quantity of Goods or (at its discretion) replace the Goods, provide a refund for the Goods or repair the Goods, except in circumstances where the Goods have not been stored or used in a proper manner.

6.3 Goods which suffer damage after delivery to the Customer or as directed by the Customer will not be accepted for return.

7. Price and Payment

7.1 The Customer must pay the Purchase Price and the Additional Charges to Company. 

7.2 If the Customer is in default, Company may, at its option, withhold further deliveries or cancel a contract without prejudice to any of its existing rights. 

7.3 All payments are due within 30 days of the date of invoice or as otherwise stated in writing by Company. Interest is charged at the rate of 1.5% per month from the expiry of that period until the date payment is received by Company.

7.4 Failure to meet payment deadlines may result in Company seeking to recover any amounts due through our credit collection agency. In this event, all fees and penalties relating to collection of amounts due are payable by Customer.

7.5 All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.

8. Intellectual Property

8.1 The Customer acknowledges that any and all of the Intellectual Property Rights are and remain the sole property of the Company and the Customer will not in any way question or dispute them. 

8.2 The Customer acknowledges and agrees that:

8.2.1 any and all goodwill arising from its use of the Intellectual Property Rights insures solely to the benefit of the Company;

8.2.2 it will not register any Intellectual Property Rights or assist any third party to do so;

8.2.3 it will not interfere with the Intellectual Property Rights or infringe the Intellectual Property Rights;

8.2.4  it will not set up any social media accounts, websites etc under the Company’s name or which otherwise may be perceived as representing the Company;

8.2.5 it will not bid on paid search marketing terms containing the name or brand of the Goods for example “buy tsk steriglide”, “tsk steriglide”, “tsk” or “steriglide”. 

8.3 The Customer shall report immediately to the Company any and all apparent infringements of the Intellectual Property Rights by third parties which come to the notice of the Customer and the Company shall have the sole right to determine whether any action shall be brought, maintained or disposed of in respect of any infringement and the nature thereof and whether the Customer shall be joined in such action and the Customer agrees that it will co­operate in the conduct of any action brought by the Company. 

8.4 The Customer shall at the Company’s cost provide all such reasonable and practicable assistance as the Company may reasonably require to protect the Intellectual Property Rights. The Customer shall not make any admission which may be prejudicial to any such action or proceedings or claim. The Company shall be entitled to all proceeds from any such action or proceedings or claim and shall be liable for all costs and expenses incurred in maintaining any such action or proceedings or claim.

9. Retention of Title

9.1 Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with Company until payment in full for the Goods and all sums due and owing by the Customer to Company on any account has been made. Until the date of payment:

9.1.1 the Customer will hold the goods in a fiduciary capacity for Company and agrees to store the Goods in such a manner that they can be identified as the property of Company and shall not mix the Goods with other similar goods; 

9.1.2 the Customer has the right to sell the Goods in the ordinary course of business;

9.1.3 the Goods are always at the risk of the Customer.

9.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:

9.2.1 if any payment to Company is not made promptly before the due date for payment;

9.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Company is dishonoured;

9.3 In the event of a default by the Customer, then without prejudice to any other rights which Company may have at law or under this Agreement:

9.3.1 Company or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods;

9.3.2 Company may recover and resell the Goods;

9.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Company may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Company and the Customer may be ascertained. Company must promptly return to the Customer any goods the property of the Customer and Company is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.

9.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Company. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such proceeds. The Customer will pay Company such funds held in trust upon the demand of Company.

9.4 Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of the Company.

10. PPSA

10.1 Defined terms in this clause have the same meaning as given to them in the PPSA.

10.2 Company and the Customer acknowledge that these Terms constitute a Security Agreement and entitle the Company to claim: 

(a) Purchase Money Security Interest (“PMSI”) in favour of Company over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and

(b) security interest over the proceeds of sale of the Collateral referred to in (a) as original collateral.

10.3 The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.

10.4 The Proceeds of sale of the Collateral referred to in clause 10.2(a) falls within the PPSA classification of “Account”.

10.5 Company and the Customer acknowledge that Company, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.

10.6 To the extent permissible at law, the Customer:

10.6.1 waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Company.

10.6.2 agrees to indemnify Company on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

10.6.2.1 registration or amendment or discharge of any Financing Statement registered by or on behalf of Company; and 

10.6.2.2 enforcement or attempted enforcement of any Security Interest granted to Company by the Customer;

10.6.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.

10.6.4 agrees to waive its right to do any of the following under the PPSA:

10.6.4.1 receive notice of removal of an Accession under section 95;

10.6.4.2 receive notice of an intention to seize Collateral under section 123;

10.6.4.3 object to the purchase of the Collateral by the Secured Party under section 129;

10.6.4.4 receive notice of disposal of Collateral under section 130;

10.6.4.5 receive a Statement of Account if there is no disposal under section 132(4);

10.6.4.6 receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged; 

10.6.4.7 receive notice of retention of Collateral under section 135;

10.6.4.8 redeem the Collateral under section 142; and

10.6.4.9 reinstate the Security Agreement under section 143.

10.6.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.

11. Liens

The Customer acknowledges that Company may have a common law or statutory lien over the Goods. In the event that there is no such lien, the Customer agrees that Company has a general lien over all Goods including the right to sell the same where the Customer is in default under these Terms. 

12. On-Sale

The Customer agrees that upon the on-sale of any Goods to third parties, it will:

  1. inform any third party involved of these Terms;
  2. inform any third party of Company’s product warranties if any; and
  3. not make any misrepresentations to third parties about the Goods.

13. Trustee Capacity

If Customer is the trustee of a trust (whether disclosed to Company or not), Customer warrants to Company that:

13.1 Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;

13.2 Customer has the right to be indemnified out of trust assets;

13.3 Customer has the power under the trust deed to enter into this Agreement; and

13.4 Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising the Company.

14. Indemnity

To the full extent permitted by law, Customer will indemnify Company and keep Company indemnified from and against any liability and any loss or damage Company may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.

15. Force Majeure

15.1 The Company will not be liable for the consequences of any failure or delay in performing any of its obligations under these Terms to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event. 

15.2 If a Force Majeure Event arises, the Company will notify the Customer in writing of the Force Majeure Event and the likely impact it will have on the Company’s performance under these Terms. If the Force Majeure Event affects the capacity of the Company to complete its material obligations under these terms in a timely manner, the Company may, by notice to the Customer, terminate this Agreement without any liability whatsoever on its part arising from that termination. 

16. General

16.1 Neither party excludes or limits the application of any statute (including but not limited to the Competition and Consumer Act 2010 (Cth) (CCA) as amended from time to time and its schedule 2, the Australian Consumer Law), where to do so would contravene that statute or cause a provision of these Terms to be void. Any stated exclusion or limitation in this Terms is only to the full extent permitted at law.

16.2 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms. 

16.3 These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.

16.4 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.

16.5 No waiver of any of these Terms or failure to exercise a right or remedy by Company will be considered to imply or constitute a further waiver by Company of the same or any other term, condition, right or remedy.

16.6 These Terms contain all of the terms and conditions of the contract between the parties and Customer has been provided with an opportunity to read, consider, negotiate, and discuss any of the Terms with the Company which may only be varied by agreement in writing between the parties.

 

WHOLESALE CUSTOMERS

Precise Medical Supplies Pty Ltd

ACN 626 539 482

(Company)

Trading Terms and Conditions

For Wholesale of Goods

These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by the Company to a Customer as a wholesale accountholder from time to time. Any supply of Goods by the Company to the Customer with a wholesale account made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by the Company (‘Agreement’) and any such supply does not give rise to a new or separate agreement.

1. Interpretation

In these Terms unless the contrary intention appears:

Additional Charges includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Company arising out of the sale of the Goods.

Consequential Loss means increased costs or expenses; loss of revenue; loss of profit or anticipated profit; loss of business; loss of business reputation; loss of opportunities; loss of anticipated savings; loss of goodwill; loss or expense resulting from a claim by a third party; special or indirect loss or damage of any nature whatsoever caused by the Company’s failure to complete or delay in completing the order to deliver the Goods; and any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly and naturally from that breach.

Customer means the person to or for whom the Goods are to be supplied by Company.

Force Majeure Event means any event outside the reasonable control of the Company including acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, interruptions of transport, government action, pandemic, epidemic or any other cause whatsoever, whether or not of a like nature to those specified herein.

Goods means the goods sold to the Customer by Company and includes any services provided by Company to Customer.

Intellectual Property Right means any patent, registered design, , trademark, copy-right, trade secret or any other proprietary right of the Company, registered or unregistered, in any country.

PPSA means the Personal Property Securities Act 2009 (Cth).

Purchase Price means the list price for the goods as charged by Company at the date of delivery or such other price as may be agreed by Company and the Customer prior to delivery of the Goods.

2. Wholesale Accounts

2.1 Unless advised otherwise in writing by the Company, any Customer that seeks to place a wholesale order with the Company must first be approved for an online wholesale account. The Company will determine based on the information provided to the Company whether the Customer is eligible for a wholesale account. 

2.2 Company reserves the right to cancel a wholesale account at any time.

3. Order for Goods

3.1 An order given to Company is binding on Company and the Customer, if:

3.1.1 a written acceptance is provided by or on behalf of Company; or

3.1.2 the Goods are supplied by Company in accordance with the order.

3.2 An acceptance of the order by Company is then to be an acceptance of these Terms by Company and the Customer and these Terms will override any conditions contained in the Customer’s order. Company reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on Company until accepted by it which it can refuse in its discretion for any reason.

3.3 An order which has been accepted in whole or in part by Company cannot be cancelled by the Customer without obtaining the prior written approval of Company, which it may refuse in its absolute discretion.

4. Warranties

4.1 Other than as set out in the remainder of this clause 4, and to the extent permitted by law, we do not provide any warranties in respect to  any Goods not manufactured by  Us, however such Goods may be independently covered by a warranty given or implied by the original manufacturer.

4.2 If the Customer is deemed to be a consumer pursuant to the Australian Consumer Law, then:

4.2.1 For Goods: 

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. 

4.2.2 For Services:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

4.3 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms or in another warranty document given by the Company are excluded and the Company is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:

4.3.1 any increased costs or expenses;

4.3.2 any loss of profit, revenue, business, contracts or anticipated savings;

4.3.3 any loss or expense resulting from a claim by a third party; or

4.3.4 any special, indirect or Consequential Loss or damage of any nature whatsoever caused by Company’s failure to complete or delay in completing the order to deliver the Goods.

5. Limitation of Liability

5.1 The Company’s liability is limited, to the extent permissible by law and at the Company’s option, to;

5.1.1 in relation to the Goods:

5.1.1.1 the replacement of the products or the supply of equivalent products;

5.1.1.2 the repair of the products;

5.1.1.3 the payment of the cost of replacing the products or of acquiring equivalent products; or

5.1.1.4 the payment of the cost of having the products repaired.

5.1.2 Where the Goods are services:

5.1.2.1 the supply of service again; or

5.1.2.2 the payment of the cost of having the services supplied again.

5.2 To the extent permitted at law, any claims to be made against the Company for short delivery of Goods must be lodged with the Company in writing within 7 days of the delivery date.

6. Delivery

7.1 The times quoted for delivery are estimates only and Company accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Company.

7.2 Risk in accepting the Goods passes on delivery to the Customer.

7.3 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods. 

7. Defects and Returns

    1. To the extent permitted at law, the Customer must inspect the Goods as soon as possible on or after delivery and notify the Company in writing within 5 days of delivery of any claims for damages resulting from any defect in the merchandise discovered by Customer, including, without limitation, claims related to shortages, quality, or specification.
    2.  If the Company accepts any shortages, or that Goods are defective or damaged, the Company agrees to supply the short quantity of Goods or (at its discretion) replace the Goods, provide a refund for the Goods or repair the Goods, except in circumstances where the Goods have not been stored or used in a proper manner.
    3. Goods which suffer damage after delivery to the Customer or as directed by the Customer will not be accepted for return.

8. Recalls

8.1 The Company will notify the Customer as soon as reasonably practicable if a recall of the Goods is required (whether mandatory or voluntarily initiated by the Company). The Customer must:

8.1.1 provide such assistance to do things as reasonably requested by the Company in relation to the recall; and

8.2.1 comply with any directions from the Company in relation to the Company product recall.

9. Price and Payment

9.1 The Customer must pay the Purchase Price and the Additional Charges to Company. 

9.2 If the Customer is in default, Company may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights. 

9.3 All payments are due within 30 days of the date of invoice, before the dispatch of Goods or as otherwise stated in writing by the Company. Interest is charged at the rate of 1.5% per month from the expiry of that period until the date payment is received by Company.

9.4 All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.

10. Intellectual Property

10.1 The Customer acknowledges that any and all of the Intellectual Property Rights are and remain the sole property of the Company and the Customer will not in any way question or dispute them. 

10.2 The Customer acknowledges and agrees that:

10.2.1 any and all goodwill arising from its use of the Intellectual Property Rights insures solely to the benefit of the Company;

10.2.2 it will not register any Intellectual Property Rights or assist any third party to do so;

10.2.3 it will not interfere with the Intellectual Property Rights or infringe the Intellectual Property Rights;

10.2.4  it will not set up any social media accounts, websites etc under the Company’s name or which otherwise may be perceived as representing the Company;

10.2.5 it will not bid on paid search marketing terms containing the name or brand of the Goods for example “buy tsk steriglide”, “tsk steriglide”, “tsk” or “steriglide”. 

10.3 The Customer shall report immediately to the Company any and all apparent infringements of the Intellectual Property Rights by third parties which come to the notice of the Customer and the Company shall have the sole right to determine whether any action shall be brought, maintained or disposed of in respect of any infringement and the nature thereof and whether the Customer shall be joined in such action and the Customer agrees that it will co­operate in the conduct of any action brought by the Company. 

10.4 The Customer shall at the Company’s  cost provide all such reasonable and practicable assistance as the Company  may reasonably require to protect the Intellectual Property Rights. The Customer shall not make any admission which may be prejudicial to any such action or proceedings or claim. The Company shall be entitled to all proceeds from any such action or proceedings or claim and shall be liable for all costs and expenses incurred in maintaining any such action or proceedings or claim.

11. Retention of Title

11.1 Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with Company until payment in full for the Goods and all sums due and owing by the Customer to Company on any account has been made. Until the date of payment:

11.1.1 the Customer will hold the goods in a fiduciary capacity for Company and agrees to store the Goods in such a manner that they can be identified as the property of Company and shall not mix the Goods with other similar goods;  

11.1.2 the Customer has the right to sell the Goods in the ordinary course of business;

11.1.3 the Goods are always at the risk of the Customer.

11.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:

11.2.1 if any payment to Company is not made promptly before the due date for payment;

11.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Company is dishonoured;

11.3 In the event of a default by the Customer, then without prejudice to any other rights which Company may have at law or under this Agreement:

11.3.1 Company or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.

11.3.2 Company may recover and resell the Goods;

11.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Company may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Company and the Customer may be ascertained. Company must promptly return to the Customer any goods the property of the Customer and Company is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.

11.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Company. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such proceeds. The Customer will pay Company such funds held in trust upon the demand of Company.

11.4 Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of the Company.

12. PPSA

12.1 Defined terms in this clause have the same meaning as given to them in the PPSA.

12.2 Company and the Customer acknowledge that these Terms constitute a Security Agreement and entitle the Company to claim: 

(a) Purchase Money Security Interest (“PMSI”) in favour of Company over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and

(b) security interest over the proceeds of sale of the Collateral referred to in (a) as original collateral.

12.3 The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.

12.4 The Proceeds of sale of the Collateral referred to in clause 12.2(a) falls within the PPSA classification of “Account”.

12.5 Company and the Customer acknowledge that Company, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.

12.6 To the extent permissible at law, the Customer:

12.6.1 waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Company.

12.6.2 agrees to indemnify Company on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

12.6.2.1 registration or amendment or discharge of any Financing Statement registered by or on behalf of Company; and 

12.6.2.2 enforcement or attempted enforcement of any Security Interest granted to Company by the Customer;

12.6.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.

12.6.4 agrees to waive its right to do any of the following under the PPSA:

12.6.4.1 receive notice of removal of an Accession under section 95;

12.6.4.2 receive notice of an intention to seize Collateral under section 123;

12.6.4.3 object to the purchase of the Collateral by the Secured Party under section 129;

12.6.4.4 receive notice of disposal of Collateral under section 130;

12.6.4.5 receive a Statement of Account if there is no disposal under section 132(4);

12.6.4.6 receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.

12.6.4.7 receive notice of retention of Collateral under section 135;

12.6.4.8 redeem the Collateral under section 142; and

12.6.4.9 reinstate the Security Agreement under section 143.

12.6.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.

13. Liens

The Customer acknowledges that Company may have a common law or statutory lien over the Goods. In the event that there is no such lien, the Customer agrees that Company has a general lien over all Goods including the right to sell the same where the Customer is in default under these Terms. 

14. On-Sale

14.1 The Customer agrees that upon the on-sale of any Goods to third parties, it will:

(a) inform any third party involved of these Terms;

(b) inform any third party of Company’s product warranties if any; and

(c) not make any misrepresentations to third parties about the Goods.

15. Trustee Capacity

If Customer is the trustee of a trust (whether disclosed to Company or not), Customer warrants to Company that:

15.1 Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;

15.2 Customer has the right to be indemnified out of trust assets;

15.3 Customer has the power under the trust deed to enter into this Agreement; and

15.4 Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising the Company.

16. Indemnity

To the full extent permitted by law, Customer will indemnify Company and keep Company indemnified from and against any liability and any loss or damage Company may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.

17. Force Majeure

17.1 The Company will not be liable for the consequences of any failure or delay in performing any of its obligations under these Terms to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event. 

17.2 If a Force Majeure Event arises, the Company will notify the Customer in writing of the Force Majeure Event and the likely impact it will have on the Company’s performance under these Terms. If the Force Majeure Event affects the capacity of the Company to complete its material obligations under these terms in a timely manner, the Company may by notice to the Customer terminate this Agreement without any liability whatsoever on its part arising from that termination. 

18. General

18.1 Neither party excludes or limits the application of any statute (including but not limited to the Competition and Consumer Act 2010 (Cth) (CCA) as amended from time to time and its schedule 2, the Australian Consumer Law), where to do so would contravene that statute or cause a provision of these Terms to be void. Any stated exclusion or limitation in this Terms is only to the full extent permitted at law.

18.2 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.

18.3 These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.

18.4 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.

18.5 No waiver of any of these Terms or failure to exercise a right or remedy by Company will be considered to imply or constitute a further waiver by Company of the same or any other term, condition, right or remedy.

18.6 These Terms contain all of the terms and conditions of the contract between the parties and Customer has been provided with an opportunity to read, consider, negotiate, and discuss any of the Terms with the Company which may only be varied by agreement in writing between the parties.