TERMS AND CONDITIONS OF SALE
Unless otherwise agreed in writing by Audeara Limited ("Audeara"), the following are Audeara's Terms and Conditions of Sale. These, together with any other Terms and Conditions agreed upon in writing between Audeara and the customer ("the Purchaser") shall apply to all sales of products by Audeara to that Purchaser.
2. EXPORT PROHIBITION
(a) The products listed herein are packaged for sale in Australia.
(b) The Purchaser may not at any time, directly or indirectly, commercially export any of the products. In addition, the Purchaser shall not sell, transfer or distribute any of the products:
(i) to any person without first requiring such person to be bound by this export restriction; or
(ii) to any person that it knows, or has reasonable grounds for believing, will or may export such products out of Australia.
Any breach of this term and condition will preclude the Purchaser from purchasing any further products from Audeara, until such time as Audeara is satisfied, in its sole discretion, that the Purchaser will not further breach this provision.
(a) When, at the Purchaser's request, special delivery services such as express post, road overnight or air freight is used, the difference between ordinary surface transportation charges and the charges for special delivery services will be charged to the Purchaser.
(b) For the purpose of requesting replacement products under condition 7, in the event of any breakage, leakage or damage to individual packages occurring in transit between Audeara warehouses and the Purchaser's receiving area, or short deliveries in consignment, the Purchaser must notify Audeara within twenty-one (21) days of receipt of the consignment.
(c) Non-receipt of products must be notified within fourteen (14) days of the date of invoice or advice of despatch otherwise, where applicable, credit for the products cannot be allowed.
4. RECOMMENDED RETAIL PRICE
(a) Recommended retail prices for the agreed products are outlined in Schedule 1.
(b) Prices are subject to change by Audeara with 30 days written notice to the Purchaser.
(c) No credit will be granted to the Purchaser for stock on hand in the event of a price reduction.
(d) The Purchaser is responsible for any tax or Governmental charge imposed on sale of the products by Audeara and the same will be added to the total invoice price.
(a) Except where products are sent on pay on order terms, or other terms are notified by Audeara, payments shall be due 15 (15) days from the date of a statement. If payment in full is not received on or before the due date, then in addition to its rights under 5(c), Audeara retains the right to charge interest on a daily basis at the Reserve Bank Official cash rate plus 5%.
(b) By accepting products on credit on the terms set out in 5(a), the Purchaser authorises Audeara to make enquiries as to the credit and financial history and responsibilities of the Purchaser, and/or the directors of the Purchaser, as required by Audeara from time to time, including obtaining reports from credit reporting agencies.
(c) Audeara reserves the right to terminate the Purchaser's credit account in the case of non-compliance with this condition 5. Such termination shall be without prejudice to any other rights Audeara may have.
(d) In addition to the right specified in clause 5(c) Audeara may in its absolute discretion and without assigning a reason, terminate the Purchaser's credit account without notice. Upon such an event all amounts payable for all products sold become due for immediate payment. The Purchaser shall not be entitled to any compensation for termination of the credit facility.
(e) The Purchaser agrees to pay to Audeara or at Audeara's direction all reasonable collection costs, including commissions and legal charges on a solicitor and client basis, on all monies outstanding on its credit account should the Purchaser breach any term or condition herein and should action be taken by or on behalf of Audeara to recover the debt.
(b) Products accepted by Audeara will be replaced by Audeara with equivalent products.
(c) Discontinued products will not be accepted for return and no credit will be granted, or monies paid to the Purchaser in respect of these products.
(d) Subject to conditions outlined herein, products will be accepted for return and replacement if they come into any of the following categories:
(ii) Incorrect supply; that is, wrong product, not sent in accordance with the Purchaser's order;
(iii) Products that Audeara is satisfied are faulty in materials or workmanship.
(ii)Products which have not expired, except as specified in (d) above;
(iii)Damaged products, except as specified in (d)(i) above.
(a) Audeara will not be liable for delay, loss or damage (including consequential loss) due to scarcity of materials, strikes, acts of God or any other cause beyond its reasonable control.
(b) The risk in products purchased shall, unless otherwise agreed in writing, pass to the Purchaser upon delivery to the Purchaser or his agent or to a carrier commissioned by the Purchaser.
(c) The printing of Australian Product Numbering codes on its product packs by Audeara is not the subject of any contract between Audeara and the Purchaser. Audeara will endeavour to observe the rules and principles of the Australian Product Numbering Association or any successor to the function thereof, but will not be liable to the Purchaser in any manner whatsoever for any loss, damage or expense attributable either directly or indirectly to the absence of or error in such code printing.
(d)These terms and conditions shall be governed by the laws from time to time of the State of Queensland and in any or all legal actions that may howsoever arise from this contract the Purchaser agrees to have such matters determined within the jurisdiction of the Courts of Queensland and their appellate Courts.
(e) No action at law or in equity shall be brought by the Purchaser against Audeara unless brought within one year from the date of delivery of the shipment of products to the Purchaser or from the date of the alleged breach of contract whichever is earlier.
(f) Audeara reserves the right to vary or add to these terms and conditions of sale at any time with thirty days written notice..
8. TITLE TO GOODS
(b) Until the Debts have been paid, the Purchaser:
(ii) must not charge, mortgage or encumber the goods;
(iii)shall ensure that the goods are insured and stored or identified such that they are readily distinguishable from other goods (including other batches of the same type of goods) held by the Purchaser or other persons.
(ii) the Purchaser shall hold such part of the proceeds it receives from any sub-sale of the goods under clause 8(c)(i) that is less than or equal to the Debt owed to Audeara at the time of receipt (the "Proceeds") as fiduciary agent and trustee for Audeara;
(ii) Audeara may, with permission (which shall not be unreasonably withheld) enter the premises at which those goods are stored, and retake possession of them;
(iii)Audeara may resell those goods.
9. WAIVER AND VARIATION
A provision of or a right created under these terms in favour of Audeara may not be waived or varied except in writing signed by Audeara. Audeara may elect not to exercise its rights arising from a breach of any provision of these terms and such election, even if the breaches are continuous and multiple shall not create any estoppel or presumption against Audeara.
10. WARRANTIES AND LIABILITIES
To the full extent allowed by law, Audeara hereby excludes all warranties, express or implied, in connection with the sale or supply of products to the Purchaser and limits its liability with respect to any sale or supply of products to the Purchaser to that (if any) under condition 7 , and Audeara shall not be liable to the Purchaser or any other party for compensation loss or damages including any incidental or consequential damages in connection with the products.
11. IMPROPER PAYMENTS
(ii) the Purchaser agrees to permit Audeara to take reasonable steps to ensure that rebates paid are properly used by permitting Audeara's auditors to access any relevant books, documents, papers and records of the Purchaser involving the payment of rebates by Audeara;
(iii) Audeara may terminate the Purchaser's credit account if Audeara learns that the Purchaser is making, or has made, improper payments to government officials.