Terms and Conditions of Trade for Safe Gauge Pty Ltd ACN 632 533 343

These terms and conditions together with any credit application, quotation or proposal to which these terms are attached or in which these terms are referred and/or the content of THE SUPPLIER’s website where that platform is being patronised or used by a purchaser or visitor, together make up a legally binding agreement (the Agreement) between: Safe Gauge Pty Ltd ACN 632 533 343 (THE SUPPLIER) AND the person(s) or company named in the attached or previously signed credit application, quotation or proposal, or if purchasing via THE SUPPLIER’s website, then the person or company making the online purchase (the Purchaser) AND if the Purchaser is a corporation, the directors of the Purchaser who have signed or otherwise agreed to these terms (the Guarantor).

This Agreement may be accepted by doing either one or more of the following:
(a) Signing these terms and conditions of trade; or
(b) Signing the credit application, proposal or quotation issued by THE SUPPLIER in which these terms and conditions were attached or referred to;
(c) Issuing a purchase order or similar request for goods or services in response to the quotation or proposal referred to at (b) above;
(d) Visiting or making a purchase through THE SUPPLIER’s website; or
(e) Applying to, and being accepted to be a part of, a trial in respect of goods whereby the goods are supplied to the Purchaser by THE SUPPLIER.

THE PARTIES AGREE as follows:

  1. Agreement to Buy and Sell
    1. The parties acknowledge that THE SUPPLIER will sell and the Purchaser will purchase goods from time to time pursuant to these terms and conditions. If any future contract or document between THE SUPPLIER and the Purchaser is inconsistent with this Agreement, then this Agreement will apply unless the subsequent contract is signed by THE SUPPLIER, refers to and specifically alters this Agreement in writing.
    2. Should there be any variation to any of the information supplied by the Purchaser to THE SUPPLIER in its credit account application or otherwise, or in the structure of the Purchaser’s business (such as a conversation to or from a company or trust or the appointment of new directors or change in shareholders), THE SUPPLIER shall be notified in writing. Until a new credit application form, or such other variation to this Agreement, is signed and approved in writing by THE SUPPLIER, the original Purchaser and those person(s) who signed as guarantor(s) shall remain liable to THE SUPPLIER as though all goods and services were supplied to the original Purchaser.
    3. The parties acknowledge and agree that these terms and conditions will apply to any supply of goods made to the Purchaser by THE SUPPLIER whether or not the goods are supplied as part of a trial for monetary consideration or otherwise.
  2. Placement of Orders and Variations
    1. The Purchaser must order the goods from THE SUPPLIER in writing, by phone, email, online via THE SUPPLIER’s website or other electronic communication acceptable to THE SUPPLIER (which includes without limitation purchase orders, the acceptance by the Purchaser of a quotation, proposal or variation prepared by THE SUPPLIER) (“orders”). Upon placement of order, the Purchaser will be bound to proceed with the purchase of the goods at a price confirmed by THE SUPPLIER.
    2. THE SUPPLIER will not be bound by any terms or conditions expressed in orders or acceptances generated by the Purchaser except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by THE SUPPLIER. For the avoidance of doubt, even where the Purchaser attaches or refers to other terms and conditions in purchase orders or other requests for quotations or supply of goods and/or services, received after this Agreement has been entered into (additional terms), such additional terms are expressly excluded from this Agreement and will be of no force or effect against THE SUPPLIER unless it expressly agrees otherwise (by notice in writing, signed by a director of THE SUPPLIER).
    3. THE SUPPLIER may decline to accept any order without providing a reason in its absolute discretion.
    4. If the Purchaser requests or THE SUPPLIER deems there to be a variation in the scope of the supply of goods, then THE SUPPLIER may (but is not obliged to) notify the Purchaser in writing of the variation, the price variation, associated delays and any other information THE SUPPLIER deems relevant.
    5. THE SUPPLIER is not obliged to commence any supply associated with any variation identified in accordance with clause 2.4 unless and until the Purchaser acknowledges and accepts in writing the variations contained in that notice
  3. Delivery of Orders
    1. The Purchaser acknowledges that goods delivered to a courier are outside THE SUPPLIER’s control and THE SUPPLIER will not be liable for any loss, damage, delay or non-delivery of goods contributed to by a third party, to the extent permitted by law.
    2. Deliveries shall be made during normal working hours and at the cost and risk of the Purchaser. In the event the Purchaser or the Purchaser’s agent is not on site to accept the delivery, then the driver’s signature denoting the time, date & place of delivery, shall be deemed to be acceptance of the said delivery by the Purchaser.
    3. Notwithstanding the generality of the preceding clause and regardless of whether or not title in the goods has passed to the Purchaser, the Purchaser must insure the goods against all risks of loss or damage where the Purchaser has possession, custody or control of or ownership of the goods and note on that policy of insurance the interests of THE SUPPLIER. For the avoidance of doubt, the Purchaser must insure the goods effective from the time they are dispatched from THE SUPPLIER’s warehouse.
    4. If a date for delivery is nominated by the Purchaser, THE SUPPLIER will not be bound to deliver the goods by that date unless it expressly agrees to do so in writing, signed by THE SUPPLIER, in which case, it will be deemed to agree to use reasonable endeavours to deliver by the relevant date. THE SUPPLIER shall be excused from any failure to deliver which is contributed to by causes beyond its reasonable control and the time specified for completion of delivery shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of this Agreement, nor shall it affect any other provisions of this Agreement to THE SUPPLIER’s disadvantage.
    5. It is the responsibility of the Purchaser to carefully inspect the goods immediately after they are delivered. Any claims with respect to damage, shortage or defect will only be considered if made in the first instance by phone within 7 days of delivery, and also in writing within 7 days of delivery.
    6. Some orders will require complete payment or a percentage of the order price to be paid up front by the Purchaser to THE SUPPLIER, some or all of which may be non-refundable. This will be notified to the Purchaser after the order is placed.
  4. Payment and Price
    1. All supplies are made at the price current at the time of delivery or completion in $AUD unless otherwise advised. The price of the goods is quoted EXW (Incoterms 2010) from THE SUPPLIER’s premises. Costs and charges for freight and handling at the point of delivery to the Purchaser or the Purchaser’s agent are payable by the Purchaser unless otherwise stated on the quote/order form or on THE SUPPLIER’s website (as the case may be). All quotes remain current for 14 days only (or such other time period notified to the Purchaser by THE SUPPLIER) from the date of quote but are not fixed. PLEASE NOTE that pricing may vary from time to time subject to exchange rate variations and/or material increases outside the control of THE SUPPLIER.
    2. Where any form of credit has been granted to the Purchaser by THE SUPPLIER, then the Purchaser must pay to THE SUPPLIER the price in relation to each purchase of goods as set out in the corresponding tax invoice. Terms are strictly fourteen (14) days from the date of invoice unless otherwise agreed in writing between the parties.
    3. THE SUPPLIER may refuse to grant or may withdraw credit facilities to the Purchaser at any time without notice. Without limiting THE SUPPLIER’s rights to withdraw credit, THE SUPPLIER reserves the right to stop & place the account and any supply on hold until the account is returned to the agreed trading terms, and THE SUPPLIER agrees to recommence supply. Where credit has not been extended to the Purchaser or is otherwise suspended or withdrawn, then the Purchaser must pay for all goods purchased in full in cleared funds prior to THE SUPPLIER releasing those goods for shipping or collection.
    4. The Purchaser agrees to pay to THE SUPPLIER an account service fee of 10 per cent per annum in relation to any invoices which are not paid strictly in terms of this Agreement, calculated daily and compounding monthly. The Purchaser acknowledges this service fee is a genuine pre estimate of the additional cost and damage suffered by THE SUPPLIER in the event of a failure by the Purchaser to adhere strictly to the terms of this Agreement.
    5. Under no circumstances may the Purchaser deduct or set off any amount under any invoice.
  5. Passing of Title and Risk
    1. THE SUPPLIER reserves the following rights in relation to all goods supplied to the Purchaser until all outstanding amounts owed by the Purchaser to THE SUPPLIER are paid in full:
      (a) title of and to all goods; and
      (b) entry into the Purchaser’s premises (or the premises of any associated company or agent where goods are located) without liability for trespass or any resulting damage to retake possession of the goods; and
      (c) to keep or resell any goods repossessed pursuant to clause 5.1(b).
    2. If the Purchaser:
      (a) resells the goods; or
      (b) sells products manufactured using the goods; then
      the Purchaser must hold an amount of the proceeds of the sale reflective of the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of THE SUPPLIER. The Purchaser must pay such amount to THE SUPPLIER upon request.
    3. Notwithstanding clauses 5.1 and 5.2, THE SUPPLIER may take action against the Purchaser for the purchase price and all risk regarding the goods will pass to the Purchaser upon delivery.
    4. In the event that the Purchaser is in default of this Agreement or in the event that an administrator, liquidator or trustee in bankruptcy is appointed to the Purchaser or the Guarantor, the Purchaser will appoint THE SUPPLIER as the Purchaser’s attorney to secure performance of the Purchaser’s obligations under this Agreement.
    5. Risk in all goods supplied to the Purchaser will pass to the Purchaser on delivery.
  6. Security and PPSA
    1. For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as defined or used in the PPSA as amended, renumbered or replaced from time to time.
    2. To the extent permitted by law, and for better securing payment of the Contract Price plus any costs or charges, the Purchaser hereby charges all of its real and personal present and after-acquired property in favour of THE SUPPLIER.
    3. The Purchaser acknowledges and agrees that this Agreement constitutes a security agreement in relation to THE SUPPLIER’s security interest in all present and after-acquired goods in accordance with the PPSA. The Purchaser agrees to grant a “Purchase Money Security Interest” to THE SUPPLIER.
    4. For the avoidance of doubt, the Purchaser acknowledges and agrees that it grants to THE SUPPLIER a security interest in all goods supplied by THE SUPPLIER to the Purchaser (whether now or in the future) and in any proceeds from the sale of those goods.
    5. To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this Agreement:
      (a) sections 95 (notice of removal of accession), to the extent that it requires THE SUPPLIER to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
      (b) section 130 (notice of disposal), to the extent that it requires THE SUPPLIER to give a notice to the Purchaser;
      (c) section 132(3)(d) (contents of statement of account after disposal);
      (d) section 132(4) (statement of account if no disposal);
      (e) section 135 (notice of retention);
      (f) section 142 (redemption of collateral);
      (g) section 143 (reinstatement of security agreement).

    6. For the purposes of section 14(6) of the PPSA, the Purchaser (and THE SUPPLIER) agree that any payments received from the Purchaser by THE SUPPLIER pursuant to or in any way connected with this Agreement, will be applied in such order as THE SUPPLIER deems fit in its absolute discretion.
    7. The Purchaser consents to:
      (a) and agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement; and
      (b) the registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.
    8. The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
  7. Warranties and Liability
    1. The Purchaser acknowledges and agrees that to the extent permitted by law, THE SUPPLIER will not be liable for, and the Purchaser releases THE SUPPLIER in respect of, any claim, loss, cost, damage or expense (Claim) arising out of any act or omission of THE SUPPLIER or its employees, officers or agents unless that Claim is a direct result of the negligence or breach of this Agreement or a warranty by THE SUPPLIER.
    2. The parties agree that any liability for a Claim against THE SUPPLIER will be limited to the lesser of:
      (a) the re-supply of defective goods or services (if applicable);
      (b) the cost of the re-supply of defective the goods or services in question (if applicable); or
      (c) the contract price of the original supply of the goods or services.

    3. Notwithstanding any of the above, the parties agree that THE SUPPLIER will under no circumstances be liable to the Purchaser for any indirect or consequential loss, loss of income, profit or opportunity or for any contingent, consequential direct/indirect special, or punitive damages arising out of or in connection with this Agreement, at law or in equity.
    4. THE SUPPLIER’S liability/obligations to honour any claim under or in connection with this Agreement do not extend to rectification of defects, loss or damage which is caused or contributed to by use or operation of any part of the goods otherwise than in accordance with guidelines or specifications supplied by THE SUPPLIER, including but not limited to the ‘OEM User Manual’ and ‘Technical Data Sheets’ which are available on THE SUPPLIER’s website, as amended from time to time, or under normal working conditions. THE SUPPLIER will also not be liable for defects, loss or damage arising out of or in connection with the misuse, neglect, or wilful destruction of any part of the goods or to any damage caused by or to the goods as a result of continued use of any part of the goods after a defect has been detected or ought to have been detected.
    5. THE SUPPLIER will use reasonable endeavours to transfer warranties given by third party manufacturers of the goods supplied and to the extent those warranties are transferrable. However, THE SUPPLIER will not be liable for negotiating with manufacturers on behalf of the Purchaser and will not be liable to provide warranties to the Purchaser in addition to those provided by the manufacturer and transferred under this clause.
    6. To the extent permitted by law and unless otherwise expressly agreed, THE SUPPLIER does not provide and expressly excludes all warranties whether implied by statute or otherwise in respect of any goods.
  8. Term and Amendment
    1. This Agreement commences on the date of its acceptance by the Purchaser and will expire upon reasonable notice being given by one party to the other or in accordance with clause 8.2.
    2. Without limiting any other rights of THE SUPPLIER, THE SUPPLIER may terminate the Agreement without notice if the Purchaser is in default under this Agreement in any way or commits an act of insolvency or an external administrator or controller, liquidator or trustee in bankruptcy is appointed to the Purchaser or the Guarantor.
    3. THE SUPPLIER may assign or otherwise transfer any of its rights under this Agreement.
    4. The Purchaser may not without the prior written consent of THE SUPPLIER assign or otherwise transfer any of its rights or obligations under this Agreement.
    5. THE SUPPLIER reserves the right to amend this Agreement, provided such amendments are conveyed to the Purchaser in writing. The Purchaser further acknowledges that such writing will be by ordinary mail to the address set out in the original credit application, proposal or quotation, unless the Purchaser advises in writing to THE SUPPLIER a new address, and this new address is acknowledged by return in writing by THE SUPPLIER. Any amendments will be deemed to be accepted upon placement of a further order with THE SUPPLIER after notice of the amendment, or 28 days, from notice, whichever occurs first.
  9. Defaults and Rights
    1. In the event of a default under this Agreement by the Purchaser, the whole of any outstanding balance will become immediately due and payable by the Purchaser to THE SUPPLIER together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis.
    2. The certificate of a director or the credit manager of THE SUPPLIER will, in the absence of evidence to the contrary, be conclusive as to the amount of the outstanding balance.
    3. No failure or delay of THE SUPPLIER to exercise any right or obligation of the Purchaser of any obligation hereunder and no custom or practice of the parties which is at variance with the terms of this Agreement and no waiver by THE SUPPLIER of any particular default by the Purchaser shall affect or prejudice THE SUPPLIER’S rights in respect of any subsequent default and no indulgence or forbearance by THE SUPPLIER of its rights under this Agreement shall adversely affect or prejudice its rights in relation to such default or any subsequent default.
  10. Intellectual Property and Confidential Information
    1. For the purposes of this Agreement, “Intellectual Property Rights” means copyright, trademark, design, patent, semiconductor or circuit layout rights and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by THE SUPPLIER in respect to this Agreement.
    2. Any pre-existing Intellectual Property Rights owned by THE SUPPLIER before the commencement of this Agreement, will remain vested in THE SUPPLIER.
    3. Any pre-existing Intellectual Property Rights owned by the Purchaser before the commencement of this Agreement, will remain vested in the Purchaser.
    4. The Purchaser agrees to grant to THE SUPPLIER a non-exclusive, transferable, royalty free licence to use the Purchaser’s pre-existing Intellectual Property Rights to the extent that use relates to any material created by THE SUPPLIER pursuant to this Agreement.
    5. Subject to any Intellectual Property Rights existing in any third party materials, all Intellectual Property Rights, created by THE SUPPLIER on or after the commencement of this Agreement will remain vested in THE SUPPLIER regardless of notwithstanding those rights were created pursuant to or for use in or with the goods.
    6. The Purchaser and its personnel, employees, representatives, sub-licensees and assigns must not reverse engineer, disassemble, decompile, alter, modify or develop THE SUPPLIER’s Intellectual Property Rights in the goods in any way. The Purchaser and its personnel, employees, representatives, sub-licensees and assigns must not distribute, sell, or otherwise make the whole or part of THE SUPPLIER’s Intellectual Property Rights in the goods available for use by a third party without the prior written consent of THE SUPPLIER, which can be withheld in THE SUPPLIER’s absolute discretion.
    7. Notwithstanding the restrictions set out in clause 10.6, if the Purchaser or its personnel, employees, representatives, sub-licensees or assigns do alter, modify or develop THE SUPPLIER’s Intellectual Property Rights in the goods, then subject to any Intellectual Property Rights existing in any third party intellectual property, all Intellectual Property Rights then existing in the goods, or in connection with the goods, as altered, modified or developed will immediately vest in THE SUPPLIER upon their creation.
    8. For the purposes of clause 10.7, the Purchaser will do all things and sign all documents to ensure vesting occurs in a timely fashion if for some reason it does not occur immediately upon creation, or as otherwise directed by THE SUPPLIER.
    9. A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
    10. A party will not be in breach of clause 10.9 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
    11. Each party will take reasonable steps to ensure that its employees and agents do not make public or disclose the other party’s Confidential Information. Notwithstanding any other provision of this clause 10, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors and accountants.
    12. For the purposes of clauses 10.9 to 10.11, “Confidential Information” means the content of this Agreement, any information of a party which is marked confidential and any information which is by its nature confidential.
  11. Applicable Law
    1. The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia.
  12. Guarantor and Purchaser’s Warranties
    1. The Guarantor and Purchaser (and each director and office bearer if the Purchaser is a company) separately warrants that:
      (a) In the case of a natural person, he/she has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act, or the equivalent legislation or laws in the jurisdiction in which the Guarantor or Purchaser resides or is incorporated, or otherwise assigned his/her assets for the benefit of creditors.
      (b) It has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fall due.
      (c) They are not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of THE SUPPLIER whether in answer to an enquiry or otherwise.
      (d) Prior to the placement of any order, they have made their own independent enquiries and satisfied themselves as to the quality and fitness for purpose of the goods and/or services and, to the extent permitted by law, THE SUPPLIER makes no warranty, promise or representation in relation to the goods and/or services, either expressly or impliedly and any warranties, terms and conditions in relation to the state, quality or fitness of the goods for any purpose, whether implied by use, statute or otherwise is, to the extent permitted by law, hereby excluded.
  13. THE SUPPLIER Relies on Guarantor and Purchaser’s Warranties
    1. In entering into this Agreement, THE SUPPLIER relies upon the warranties provided above and upon any information supplied by the Purchaser in an accompanying credit account application.
    2. THE SUPPLIER relies upon the representation that the person signing this Agreement has authority to execute it on behalf of the Purchaser described in the Schedule.
  14. Personal Information
    1. The Purchaser and Guarantors consent to THE SUPPLIER from time to time, seeking, advising, exchanging and verifying any personal or commercial information of the Purchaser or the Guarantors with any third party and to carrying out any further pertinent investigation about the Purchaser’s or Guarantor’s contact/address details, credit arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status etc.
  15. Goods and Services Tax (GST) and Other Taxes
    1. GST will be charged to all relevant goods and services and will be payable by the Purchaser at the time of payment, including but not limited to all stock, services, costs, fees, freight charges and any other amounts that become payable by operation of this Agreement.
    2. Notwithstanding the generality of the preceding clause 15.1, the Purchaser will be responsible for all international taxes, charges, imposts, levies, duties and expenses charged to all relevant goods and services that become payable by operation of this Agreement.
  16. Credit Limit
    1. Notwithstanding any other provision in these terms, THE SUPPLIER may grant credit to the Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit THE SUPPLIER is comfortable extending to the Purchaser. THE SUPPLIER may increase or decrease any such cap as it sees fit from time to time throughout the duration of these terms by notice to the Purchaser in writing
    2. If a credit limit is set and then exceeded by THE SUPPLIER, such excess will not be a breach of this Agreement by THE SUPPLIER.
    3. In the event that THE SUPPLIER serves notice in accordance with clause 16.1 then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee will continue to operate in its amended form.
    4. However, should THE SUPPLIER decide to extend beyond the credit cap in place from time to time, then the cap will in no way act to limit the ability or right of THE SUPPLIER to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser or any Guarantor to pay those monies to THE SUPPLIER.
  17. Dispute Resolution
    1. If any dispute arises out of or in connection with this Agreement, both parties agree to first negotiate in good faith with the other party to resolve the dispute.
    2. If the dispute is not resolved by those negotiations within thirty (30) days, then either party may refer the dispute to the Australian Disputes Centre (ADC) for resolution by mediation and if necessary by arbitration in accordance with the Conciliation Rules of the ADC.
  18. Force Majeure
    1. A Force Majeure event means anything outside reasonable control of a party, including but not limited to:
      a) Power, data or communication outages that are not within the control of the affected party;
      b) Acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
      c) A transportation embargo;
      d) Industrial action (including a picket); and
      e) Any legislation or regulation and any action or inaction of any government or government agency
    2. If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money then:
      a) As soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations; and
      b) That party’s obligation to perform will be suspended for the duration of the delay arising directly out of the Force Majeure event.
  19. Guarantee and Indemnity by Director(s), Trustee(s) and Guarantor
    1. In consideration of THE SUPPLIER agreeing to supply goods to the Purchaser:
      The Guarantors unconditionally guarantee to THE SUPPLIER the due and punctual performance by the Purchaser of all the Purchaser’s obligations under each and every Agreement including, without limiting the generality of the foregoing, the payment by the Purchaser of all moneys, which term includes, without limitation, principal, fees, interest and costs) payable or repayable (whether presently or in the future, actually or contingently) under each and every Agreement and the Guarantors promise to pay to THE SUPPLIER on demand all moneys which the Purchaser defaults in paying under any Agreement including all moneys arising by way of costs, expenses, bank charges, losses or damages incurred by arising from any default by the Purchaser under or relating to any Agreement.

      I/We also acknowledge and agree in my/our capacity as Guarantor that the Guarantee and Indemnity that I/we may have previously given continues to secure any and all liabilities and obligations of the Purchaser/debtor.