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LEGAL

Delnorth Standard Terms and Conditions

INTRODUCTION

  1. The Company has agreed to provide you with goods (Goods) in accordance with:
    • any quotation, offer or invoice of the Company which is accepted by you; or
    • a purchase order for Goods which has been accepted by the Company (but excluding any terms or conditions issued by you or any terms or conditions printed on or referred to in such purchase order or other documentation unless expressly agreed to in writing by the Company) (Order),

on the terms and conditions of these Standard Terms and Conditions (the Agreement).

DELIVERY AND ORDERS

  1. Any timeframes and delivery dates quoted by the Company for delivery of the Goods (Delivery Dates) are estimates only. Where the Company is responsible for the delivery of Goods, the Company will use commercially reasonable efforts to deliver the Goods to the location (Delivery Point) specified in the relevant document (including any Order issued by you) by the Delivery Date. If you do not specify a Delivery Point or if both the Company and you agree, you must collect the Goods from a location specified by the Company.
  2. You acknowledge and agree that the Company is not liable for any losses, liabilities or costs sustained, incurred or suffered by you or any third party as a result of a delay or failure to deliver the Goods (or any part of them) to the Delivery Point by the Delivery Date, howsoever caused.
  3. Once accepted by the Company, an Order may not be cancelled, amended or postponed unless agreed in writing by the Company.
  4. Unless otherwise specified, the fees specified in an invoice are exclusive of all costs associated with the delivery of the Goods to the Delivery Point.
  5. Delivery will be taken to have occurred at the time when the Goods are:
    • delivered to the Delivery Point (where the Company is responsible for the delivery of the Goods);
    • made available to be collected by you or on your behalf (if applicable); or
    • left at the Delivery Point or returned to the Company location in accordance with clause 7
  6. If the Delivery Point is unattended at the time delivery is to take place, the Company may, at its sole discretion, either:
    • leave the Goods at the Delivery Point; or
    • return the Goods to the Company location in which case any costs associated with the return, storage and re-delivery of the Goods will be borne by you.
  7. The Company reserves the right to deliver Goods by instalments, in which case, failure of the Company to deliver a particular instalment will not entitle you to cancel any other instalments.

RISK AND TITLE

  1. Notwithstanding that the Goods may remain in the possession or control of the Company, risk in the Goods will pass to you upon the earlier of:
    • payment by you of all amounts due; and
    • the time delivery is taken to have occurred in accordance with clause 6
  2. Title in the Goods passes to you upon payment by you of all amounts due for the Goods.
  3. Until title to the Goods passes to you, you acknowledge and agree that you hold the Goods as bailee for the Company. If required by the Company, you must identify the Goods as belonging to the Company.

PAYMENT AND TAXES

  1. You must pay each invoice issued by the Company in accordance with the terms specified in such invoice.
  2. The Company may charge you interest on any overdue monies at a rate equal to 8% per annum, calculated from the due date of payment of the outstanding amount until the date of payment in full. Interest payable under this clause 13 will be compounded every three months and any payments made by you will be first credited against any interest that has accrued.
  3. If any authority imposes a duty, tax, levy or fee upon any transaction under this Agreement (excluding those based on the Company’s net income), then you agree to pay that amount. You are responsible for any personal property taxes for each Good from the date the Company ships the Good to you.
  4. Each party must use commercially reasonable efforts to, at that party’s own expense, supply appropriate documentation as reasonably required by the other party in order to ensure appropriate tax treatment of transactions contemplated under this Agreement.
  5. You acknowledge and agree that you are not permitted to set off any amounts owed to the Company under this Agreement with any amounts paid by or owed to you by the Company under any other agreement.

GST

  1. In this clause:
    • words and expressions that are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law;
    • GST means GST within the meaning of the GST Law and includes penalties and interest; and
    • GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  2. Except as otherwise provided in clauses 17 – 22 all consideration payable under this Agreement in relation to any supply is exclusive of GST.
  3. If GST is payable in respect of any supply made by a supplier under this Agreement (GST Amount), the recipient must pay to the supplier an amount equal to the GST payable on the supply. Subject to clause 20, the recipient must pay the GST Amount at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement in full and without deduction, set off, withholding or counterclaim (unless otherwise provided in this Agreement). If the rate of GST changes, the supplier may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.
  4. The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST Amount under clause 19.
  5. If this Agreement requires a party to pay, reimburse or contribute to any expense, loss or outgoing suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:
    • the amount of the payment, reimbursement or contribution, less any input tax credit in respect of the payment, reimbursement or contribution to which the other party is entitled; and
    • if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.
  6. If an adjustment event occurs in relation to a taxable supply under this Agreement:
    • the supplier must issue an adjustment note to the recipient within 7 days after becoming aware of the adjustment; and
    • any payment necessary to give effect to that adjustment must be made within 7 days after the date of receipt of the adjustment note.

CONFIDENTIALITY

  1. You agree to keep confidential the Company’s information concerning its business, products, services, systems, procedures and records (in whatever form, including in electronic format), and its relationships with its customers and suppliers, disclosed in the course of, or arising from, the Agreement (Confidential Information). For clarity, Confidential Information includes the terms and conditions of this Agreement and the fees payable by you.
  2. All Confidential Information remains the property of the Company and may only be used by you in exercising your rights and performing obligations under the Agreement.
  3. You must not disclose any Confidential Information to any third party without the Company’s prior written consent except where disclosure is necessary to comply with the Agreement or if the disclosure is required by law. In the case of disclosure required by law, such disclosure must not be made without prior consultation of the Company and must be made so as to minimise any such disclosure.
  4. You agree to effect and maintain adequate security measures to safeguard the Confidential Information while in your possession or control, including protecting the same against any use, disclosure, access, damage or destruction which is inconsistent with the terms and conditions of this Agreement.
  5. You must promptly give notice in writing to the Company if you become aware of any unauthorised or suspected unauthorised disclosure to any third party of any of Confidential Information and provide the Company with all information and assistance reasonably required by the Company in respect of such unauthorised or suspected unauthorised disclosure.
  6. Upon termination of this Agreement for any reason whatsoever or the Company’s request, you must immediately return or destroy (at the direction of the Company) all Confidential Information.

PRIVACY

  1. Each party must comply with all requirements of the Privacy Legislation.
  2. In this Agreement, Privacy Legislation means Privacy Act 1988 (Cth) and any applicable analogous legislation in any jurisdiction from time to time.

INTELLECTUAL PROPERTY

  1. You acknowledge and agree that the Agreement does not transfer any right, title or interest in the Company’s (or its licensors’) intellectual property to you or anyone else.

WARRANTIES

  1. The Company warrants that all Goods will be free from defects in workmanship and materials for twelve (12) months from the time delivery is taken to have occurred in accordance with clause 6 above (Warranty Period). Additional warranties may be provided by the Company for particular Goods as specified in Appendix 1 to this Agreement.
  2. The warranties provided in clause 32 and Appendix 1 (if any) are subject to the following conditions:
    • the relevant Good must be transported, stored, installed and used in accordance with the Company’s technical guidelines and recommendations;
    • the relevant Good must not have been damaged by fire or floods, vandalism, accident, impact, alterations, misuse, any climatic or soil conditions or any similar incident that the Company could not reasonably have predicted would likely affect the Good during the Warranty Period;
    • the relevant Goods must not have been modified without the prior written permission of the Company; and
    • damage to the relevant Good must not have been caused by an act or omission by you (including, but not limited to, your negligence).
  3. To the maximum extent allowable under applicable law, the warranties provided in clause 32 and Appendix 1 (if any) are the exclusive warranties in relation to the Goods supplied, or to be supplied, or otherwise relating to the performance of the Company’s obligations, by the Company under this Agreement, and all other warranties, express or implied by law or otherwise, including implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose are excluded. To the extent any such warranties are not able to be excluded, the remedy for breach of such warranty is limited as set out in clause 35.
  4. If a particular Good does not comply with the warranties in clause 32 or Appendix 1 (if any) and you notify the Company in writing of the defect during the Warranty Period, the Company will, in the Company’s sole discretion, either repair or replace the relevant Good with a functionally equivalent product. If the Company is unable to do so, you may return the Good to the Company for a refund of the amount you paid for that Good.
  5. This clause applies to you if you are a Consumer. A Consumer means a consumer within the meaning of section 3 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time).
    • To the extent that you acquire goods from us as a Consumer, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) under the Australian Consumer Law that cannot be excluded, restricted or modified by agreement. Nothing in this Agreement operates to exclude, restrict or modify the application of any provision, condition or warranty, the exercise of any right or remedy or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, where to do so would contravene that statute or cause any part of this Agreement to be void (Non-excludable Consumer Rights).
    • To the maximum extent permitted by law, our liability for breach of any Non-excludable Consumer Rights is limited to:
      • replacement or refund for a major failure; or
      • replacement or repair if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

RETURN OF GOODS

  1. No goods may be returned to the Company without the prior written approval of the Company.
  2. Subject to clause 39, where the Company has approved the return of Goods, the Company reserves the right to inspect the returned Goods. Returned Goods are subject to a restocking and rehandling fee of 20% of the invoice value for those particular Goods.
  3. Goods, in which a return is sought and approved by the Company, must be returned to the Company’s premises at your cost and in the original containers and packaging in which they were supplied and in the same condition as the Goods were when they were provided to you.
  4. Without limiting the generality of the foregoing, the parties agree that, to the fullest extent permitted by law, you will not be entitled to return Goods which the Company has customised or specially ordered for you in accordance with your instructions.

LOSS OR DAMAGE TO GOODS

  1. In the event that any Goods received by you are damaged, not of a suitable standard or are not delivered on the Delivery Date (including, for example, where Goods are lost or damaged during transit), you must provide notice in writing to the Company within fourteen (14) days of the Delivery Date providing details of any matter or thing which is not in accordance with the terms of any order. If you fail to provide such notice within fourteen (14) days of the Delivery Date, the relevant Goods will be taken to be accepted by you.

PERSONAL PROPERTY AND SECURITIES ACT

  1. If the Company determines that the Agreement or a transaction contemplated by it is or contains a security interest taken to be granted by you for the purposes of the PPSA, the provisions of clauses 42to 47
  2. You consent to the Company affecting and maintaining a registration on the register (in any manner it considers appropriate) in relation to the security interest contemplated by this Agreement and agrees to sign any documents and provide all assistance and information to the Company required to facilitate this. The Company may at any time register a financing statement or financing change statement in respect of any security interest created by the arrangements contemplated by this Agreement. You waive the right to receive notice of a verification statement in relation to any registration on the register.
  3. You undertake to:
    • do anything (including executing any new document or providing any information) that is required by the Company to enable the Company to acquire and maintain a perfected security interest under the PPSA which is enforceable, perfected or otherwise effected against you and third parties; and
    • not register, or permit to be registered, a financing statement or a financing change statement in respect of any security interest contemplated by this Agreement without the prior written consent of the Company.
  4. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with this Agreement, the following provisions will not apply and you will have no rights under them (to the extent permitted by law): section 95, section 121(4), section 125; section 129(2) and 129(3); section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143.
  5. Unless otherwise agreed and to the extent permitted by the PPSA, the Company and you agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person. You agree to waive any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
  6. In this Agreement, PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it, and the following words have the respective meanings given to them in the PPSA: collateral; financing change statement, financing statement, interested person, register, registration, security agreement, and verification statement.

LIABILITY AND INDEMNITY

  1. Neither party (nor its related bodies corporate) will be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement for any special, incidental, exemplary, indirect or economic consequential damages even if such party has been advised of the possibility of such loss or damage, or lost profits, business value, business opportunity or agreements, revenue, goodwill or anticipated savings, including any loss, not arising naturally, that is according to the usual course of things, from the relevant breach act or omission, whether or not such loss may reasonably be supposed to have been in the contemplation of the parties, at the time they entered the agreement, as the probable result of the relevant breach.
  2. Subject to clause 48 and 50, the Company’s entire liability for all claims related to this Agreement will not exceed the amounts paid by you for the Good that is the subject of the claim, regardless of the basis of the claim.
  3. Any provision of this Agreement that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law.

FORCE MAJURE

  1. The Company will not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay or failure is due to the occurrence of a Force Majeure Event.
  2. For the purpose of this Agreement, Force Majeure Event means a circumstance beyond the Company’s reasonable control which results in it being unable to observe or perform on time an obligation under this Agreement, including natural disaster, act of war, terrorism, civil commotion, industrial action, epidemic, pandemic or public health emergency, or any resulting governmental action including work stoppages, border closures and travel restrictions, malicious software or hardware attack, or failure or default of any other supplier.

DISPUTE RESOLUTION

  1. A party claiming that a dispute (Dispute) has arisen under or in connection with this Agreement must notify the other party in writing giving details of the dispute.
  2. During the one (1) month period after a notice is given under clause 53 (or any longer period agreed in writing between the parties) the parties’ chief executive officers (or equivalent) must work together in good faith to resolve the Dispute.
  3. While the procedure set forth in clauses 53 to 54 are being followed, both parties must continue to fulfil their obligations under this Agreement.
  4. The procedure set out in clauses 53 to 55 are not intended to limit or exclude a party’s rights under this Agreement or at common law or equity (including the right to make applications for interim relief, including injunctions).

GENERAL

  1. The Company may sub-contract, assign, novate, transfer or otherwise dispose of any or all of its rights and/or obligations under this Agreement by written notice to you.
  2. No variation of this Agreement is effective unless made in writing and signed by both parties. None of its terms can be varied, waived or released at law or in equity unless both parties agree in writing.
  3. This Agreement (including any documents incorporated by reference, as amended from time to time) constitutes the entire agreement between the parties in respect of its subject matter.
  4. This Agreement is governed by, and must be construed in accordance with, the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
  5. If there is any ambiguity, conflict or inconsistency between the documents comprising this Agreement, the following order of precedence shall apply: (a) the terms of this Agreement; (b) terms contained in any invoice issued by the Company; and (c) any other document incorporated by reference.

Appendix 1 to Standard Terms and Conditions

ADDITIONAL WARRANTIES APPLICABLE TO STEEL-FLEX® ROAD EDGE GUIDE POSTS AND LANE-FLEX® REBOUNDABLE LANE DIVIDERS

  1. Subject to clauses 32 – 35 of the Agreement, the Company warrants to you that:
    • each Steel-Flex ® Road Edge Guide Post (Guide Post):
      • is designed to comply with Australian Standard AS 1742.2:2009 and British and European Standard EN 12899-3:2008; and
      • when installed in accordance with the standards described in subsection 1.1 above, will retain 85% of colour, appearance and physical properties as outlined in the Company’s official published specifications for ten (10) years from the time delivery is taken to have occurred in accordance with clause 6 of the Agreement; and
    • each Lane-Flex ® Reboundable Lane Divider (Lane Divider):
      • is designed to comply with British and European Standard EN 13422:2004/7.8, 7.9 and 7.10; and
      • when installed in accordance with the standards described in subsection 1.1 above, will retain 85% of colour, appearance and physical properties as outlined in the Company’s official published specifications for three (3) years from the time delivery is taken to have occurred in accordance with clause 6 of the Agreement.
  1. You acknowledge and agree that the Guide Posts and Lane Dividers incorporate certain components (including reflective film and vinyl), which are manufactured and separately warranted by third parties (for example, 3M and Avery Dennison) (Third Party Components). The Company will, subject to clause 33 of the Agreement, endeavour to pass on the benefit of any such third party warranties to you for those Third Party Components, however the Third Party Components are otherwise provided ‘as-is’ and without warranties of any kind. The remedy for any breach of a warranty in relation to Third Party Components will be provided directly by the original manufacturer.