SALES TERMS & CONDITIONS

BVNC Pty Ltd Sales Terms & Conditions

 

RECITAL

Bolton Vibration & Noise Control is an Acoustical Engineering Supplier.

Perth based BVNC is a leading supplier of noise and vibration control products in Western Australia.

The company is an authorised representative of Mason Mercer and the exclusive distributor of Mason Industries Inc product (Mason Mounts) in the State of Western Australia.

The company is an official introducer of IAC Noise-Lock doors & windows in Western Australia.

Business customers offer to purchase product and services.

It is agreed to sell to all customers in accordance with the terms and conditions set out by this agreement.

 

Acceptance of the Terms:

It is important that the basis upon which we act is clearly understood and agreed upon. Once you have engaged our services it is expected you have read and understood and agreed to this document.

1. A copy may be presented for account customers to sign, or any who requires it.

2. However, you accept the offer by your conduct. For example, by continuing to give instructions or on the receipt of goods.

 

This supply agreement is made and valid at the time of the transaction request until completion of sale and remains valid until review or clause subject to this agreement (for credit to be considered the Sales T&C document must be signed and dated by any potential customer/s):

 

BETWEEN

BVNC Pty Ltd (ACN 674 525154)

of 54B Lamond Street, Alfred Cove in the State of Western Australia

(“BVNC”)

-and- its customer in the State of Western Australia

(“the Customer”)

 

THE PARTIES HEREBY AGREE AS FOLLOWS:

 

1 Definitions & Interpretation

1.1 In the Agreement, unless the contrary intention appears:

Account Customer means an accepted Customer who engages in regular and ongoing business because they trust in the BVNC Service and Product. It is expected they are brand advocates, promoting the engineering quality of Mason Mounts to the end users. They agree to records being kept to expedite service delivery and are rewarded by special pricing. Account Customers are expected to have had a relevant company representative sign this document and will receive an initial line of credit, to the limit set out in the Rates Schedule addendum.

ACL means the Australian Consumer Law which is contained in Schedule 2 of the

Competition and Consumer Act 2010 (Cth).

Administration Fee means a monthly amount as to cover administration as set out in the Rates Schedule addendum.

Agreement means the following and, if there is any inconsistency, in the following order of priority:

1. an Online Booking;

2. Rates Schedule;

3. Credit Facility Terms; and

4. these Terms.

Business Day means a day which is not a Saturday, Sunday or public holiday in the state of Western Australia.

Cancellation Fee means a percentage of sale or fee for terminating during agreement as set out in the Rates Schedule addendum.

Claim means in relation to any person, an action, claim, cost, damage, expense, loss, liability or proceeding incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means all information which is commercially sensitive in nature or which a reasonable person of sound business acumen would consider to be commercially sensitive, and includes, without limitation:

1. all information relating to the operations and affairs of the Company or its Business, including any customer details, accounting and financial records, records of sales, supply, analyses, know-how, and trade secrets;

2. all information which the Company considers to be confidential, and includes any information which the Company discloses to the Shareholder or is made known to the Shareholder under an obligation to keep that information confidential; and

3. the terms of this Agreement.

Consumer means a consumer as defined by the ACL.

Consumer Guarantee means a guarantee under the ACL.

Credit Customer means an Account Customer according to this Agreement who has also been accepted for extended credit facilities as per a signed and accepted Credit Facility Terms addendum.

Customer means the person/s, entities or any person acting on behalf of and with the authority of the customer requesting the BVNC to provide the Product or Services as specified in any proposal, quotation, order, invoice, or other documentation, and:

1. if there is more than one Customer, is a reference to each Customer jointly and severally; and

2. if the Customer is a partnership, it shall bind each partner jointly and severally; and

3. if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and

4. includes the Customer’s executors, administrators, successors, and permitted assigns.

5. A Customer’s details do not have to be listed here to be considered a Customer, any party engaging with BVNC is expected to have completed due diligence and made themselves aware of any Sales Terms & Conditions, and therefore accepting this Agreement as the Customer.

Discloser means the Party who discloses or otherwise provides Confidential Information to another Party.

Due Date means the date on which any Invoice is due to be paid.

Fees and other monetary rates are subject to change. The Rates Schedule addendum will be published along with this Agreement on the BVNC website, and can be sent on request.

Force Majeure includes without limitation any event beyond the Party’s control such as:

1. riot, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), acts of terrorism and related consequences, civil commotion or war, rebellion, revolution, piracy, mutiny, conspiracy, insurrection, usurpation of civil or military government;

2. ionising radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

3. pressure waves or other damage caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;

4. earthquake, landslide, volcanic activity, flood or inundation, fire, or explosion tidal wave, typhoon or cyclone, hurricane, storm, lightening or other extreme weather condition or natural or physical disaster;

5. plague, avian flu or other epidemic, quarantine and related consequences;

6. strikes at a national or regional level or industrial disputes at a national or regional level, or strikes or industrial disputes by labour not employed by the affected party,

7. its subcontractor or strikes or industrial disputes confined to labour employed by the affected party on its subcontractors arising from targeted action by a trade union or other activist group;

8. sabotage, lock-out, embargo, import restriction, port congestion, lack of usual means of public transportation and communication and shortage or restriction of power supply;

9. maritime or aviation disasters;

10. changes to any general or local statute, ordinance, decree, or other law, or any regulation or by-law of any local or other duly constituted authority or the introduction of any such statute, ordinance, decree, law, regulation or by-law; or

11. shortage of labour, materials or utilities where caused by circumstances that are themselves Force Majeure occurrences.

GST has the meaning given in the GST Law.

GST Law means A New Tax System (Goods & Services Tax) Act 1999.

Insolvency Event means, in relation to a Party:

1. an application or an order is made for the winding up of the party, which is not dismissed, struck out or withdrawn within 14 day of that Party filing a notice of intention to defend (or similar); or

2. the declaration of bankruptcy of a party; or

3. the appointment of an administrator, receiver, liquidator, or receiver, or receiver and manager; or

4. a resolution is passed for the winding up of the Party, or for the appointment of an administrator, receiver, liquidator, or receiver, or receiver and manager;

5. a receiver or manager (or both) is appointed to, or a mortgagee takes possession of, all or any part of the business or the assets of the Party;

6. the Party makes any composition or arrangement or assignment with or for the benefit of one or more of its creditors;

7. the Party is or states that it is insolvent or is deemed or presumed to be under an applicable law; or

8. the Party proposes a winding-up or dissolution or reorganisation, moratorium,

9. agreement of company arrangement or other administration involving one or more of its creditors; or

10. the Party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act; or

11. an application is made or notice is issued under sections 601AA or 601AB of the Corporations Act; or

12. a writ of execution is levied against the party or its property and is not removed within fourteen (14) days of notification of the levy; or

13. anything analogous or of similar effect to any of the above events occurs under the law of any applicable jurisdiction.

Intellectual Property means all trade marks, copyrights, patents, registered designs and other intellectual and industrial property rights, and includes but is not limited to unpatented production methods and technical and confidential information embodied in or used in connection with the Products or communicated under this Agreement.

Invoice means a tax invoice issued by BVNC to the Customer.

Party or Parties mean BVNC and/or the Customer.

PMSI means Purchase Money Security Interest as defined by the PPS Act.

PPS Act means the Personal Property Securities Act 2009 (Cth) and any subsidiary legislation.

PPSR means the Personal Property Securities Register under the PPS Act

Product or Services means all Goods or Services supplied by the BVNC to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).

Recipient means the Party who receives Confidential Information from another Party.

Security Interest means a security interest as defined in the PPS Act, any interest held as security for the payment of a monetary obligation or other performance and any other right, interest or other arrangement which in substance secures performance of an obligations and gives a creditor.

Taxable Supply has the meaning given the GST Law.

Tax Invoice has the meaning given in the GST Law.

Termination Date means the date on which the obligations under this Agreement terminate pursuant to clauses.

1.2 In this Deed, unless the contrary intention appears:

1. any obligation that binds two or more persons binds them jointly and severally;

2. any right conferred for the benefit or benefits two or more persons benefits them jointly and severally;

3. a word importing the singular includes the plural and vice versa;

4. a word importing any gender includes any other gender;

5. the word “including” does not import any limitation;

6. where, by operation of this Agreement, the day on which any act, matter or thing to be done is not a Business Day, then that act, matter or thing must be done on the next succeeding Business Day;

7. a reference to a person includes an individual, the estate of that individual, a corporation or an incorporated or unincorporated association, a joint venture or parties thereto, or partnership;

8. a reference to a party includes that party’s executors, administrators, successors and permitted assigns;

9. a reference to this Agreement or a provision of this Agreement is to this Agreement as varied, novated or replaced from time to time;

10. a reference to any legislation includes any subsidiary legislation made under it, and any legislation or provision which amends or replaces the legislation;

11. a reference to an amount payable is a reference to that amount in Australian Dollars;

12. headings are for convenience only and do not affect the interpretation;

13. this Deed is not to be construed adversely to a party just because that party prepared this Deed, or caused this Deed to be prepared.

 

2 Purchase of Products

2.1 By placing an order to purchase goods and services from BVNC, the Customer accepts this Agreement.

2.2 The Customer is solely responsible for satisfying themselves that the Products are suitable for the use contemplated. Any description of the Products provided on BVNC’s website, in any brochure, catalogue, other marketing material, quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.

2.3 Any delivery dates specified by BVNC are approximates only and BVNC is not to be liable for any delay in delivery regardless of the reason for the delay. The Customer is not entitled to cancel the Agreement because of any reasonable delay.

2.4 If for any reason beyond the control of BVNC, BVNC is unable to effect delivery or provision of the Services to the Customer, then BVNC may, in its absolute discretion, cancel the Customer’s order (even if it has already been accepted) by notice in writing.

2.5 The Customer is responsible for ensuring that the Products, including the placement of installation and characteristics of the Products, are in compliance with any local government, strata, utility provider or others requirements.

2.6 The Customer agrees to take responsibility for the care of Product upon delivery to their nominated location and accepts the risk of damage to or loss of Product passes to the customer on Delivery. It is the Customers responsibility to inspect product delivered and to carry out any tests that a prudent person would carry out. The Customer must insure the Product on or before Delivery behalf of BVNC, until ownership has passed according to this Agreement.

2.7 If any of the Product is damaged or destroyed following Delivery but prior to ownership passing to the Customer, BVNC is entitled to receive all insurance proceeds payable for the affected Product. The production of these terms and conditions by the Customer is sufficient evidence of BVNC’s rights to receive the insurance proceeds without the need for any person dealing with the Customer to make further enquiries.

2.8 If the Customer requests the BVNC, or its agents, to leave Product outside the Customer’s premises for collection, or specified deliver location, or to deliver the Product to an unattended location, then such Product shall be left at the Customer’s sole risk.

2.9 The Customer acknowledges and accepts that BVNC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

1. resulting from an inadvertent mistake made by BVNC in the formation and/or administration of this Agreement; and/or

2. contained in/omitted from any literature (hard copy and/or electronic) supplied by BVNC in respect of the Product.

2.10 In the event such an error and/or omission occurs in accordance with clause 2.7, and is not attributable to the negligence and/or willful misconduct of BVNC; the Customer shall not be entitled to treat this Agreement as repudiated nor render it invalid.

2.11 The Customer is responsible for supplying correct information such as, without limitation, specification, measurements and quantity, when requesting Product selection or placing an order for Product (whether they are custom made to order or not).

2.12 The Customer agrees for BVNC to make selection of Product to suit information provided, or on educated assumptions of missing information, or best estimates based on industry standards which include Mason Industries guides and AIRAH/ASHRAE equivalents. Prior to ordering the Customer has a duty to check selections for suitability of use, and accepts all responsibility for sales.

2.13 ("Buyer Error"). The Customer must pay for all Product it orders from BVNC notwithstanding that such Product suffer from a Buyer Error or other error, and notwithstanding that the Customer has not taken or refuses to take Delivery of such Product. BVNC is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Buyer Errors.

 

3 Price & Payment

1. At BVNC’s sole discretion, the Price shall be either:

1. as indicated on any sales order or invoice provided by the BVNC to the Customer; or

2. the BVNC’s quoted Price (subject to clause 3.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

   1. BVNC reserves the right to change the Price if a variation to BVNC’s quotation is requested. Any such request rescinds and invalidates past versions of the quotation.

   2. Variations will be charged for on the basis of the quotation, and will be detailed in writing, and shown as variations on the invoice. If a variation is in dispute, the Customer is required to respond to any variation submitted by BVNC within ten (10) working days. Failure to do so will entitle BVNC to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

3.4 In consideration of BVNC providing the Products, the Customer agrees to pay the Fee as stated in the Sales Order at the time of the order or, in accordance with the payment terms, or schedule if provided.

3.5 All Customer’s shall pay a non-refundable deposit, up to and including the total amount of the order for non-stocked, or custom manufacture items at the time of order.

3.6 The Credit customer will pay invoices rendered within the payment terms agreed time limit of being issued without any right to set off or deduct any amounts the Customer alleges may be owed to the Customer. BVNC accepts cash, cheque, bank transfer, EFTPOS and credit card, except credit card transactions may be liable for up to a surcharge listed in the Rates Schedule addendum.

1. When provided with a credit card BVNC will:

1. keep the Customer’s personal details, including credit card details for only as long as is deemed necessary;

2. not disclose the Customer’s credit card details to any third party; and

3. not unnecessarily disclose any of the Customer’s personal information, except is accordance with the Privacy Act (clause 18) or where required by law.

3.8 The Customer expressly agrees that, if pursuant to this Agreement, there are any unpaid charges, fees or other amounts due, then BVNC is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Agreement.

3.9 The Customer acknowledges that supply on credit shall not take effect until they have completed a credit application and it has been approved by BVNC with a credit limit established for the account.

3.10 In the event that the order requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, BVNC reserves the right to refuse delivery.

3.11 BNVC may charge Interest on amounts not paid by the Due Date plus the Administration Fee.

3.12 In respect of any disbursements payable, the Customer shall pay for such disbursements or reimburse BVNC for such disbursements paid by BVNC in provision of the Products.

3.13 BVNC may in its discretion allocate any payment received from the Customer towards any invoice that BVNC determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer BVNC may re-allocate any payments previously received and allocated. In the absence of any payment allocation by BVNC, payment will be deemed to be allocated in such manner as preserves the maximum value of the BVNC’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

3.14 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BVNC nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify BVNC in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as BVNC investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in BVNC placing the Customer’s account into default and subject to default interest in accordance with this Agreement.

3.15 The Customer acknowledges GST is payable on receipt of a tax invoice in respect of each taxable supply made under this Agreement and that all charges, including disbursements, are exclusive of GST.

 

4 Title

4.1 The Customer will assume the risk in the Product, including but not limited to risk of theft, loss, damage and delay, at the time of the delivery of the Products to the Delivery Point.

4.2 Ownership in the Product supplied does not pass to the Customer until the Customer has discharged all outstanding indebtedness whether in respect of the Products supplied or otherwise to BVNC, or until such time as the Customer sells the Product to its clients in the ordinary course of business. Until payment in full of that indebtedness has been made, the Customer acknowledges and agrees that:

1. the Products sold are held by the Customer in a fiduciary capacity as bailee to be sold by it as agent for and on behalf of BVNC;

2. the Customer will if directed by BVNC, store the Products supplied marked in such a way that it is clear that the Products are the property of BVNC, but all costs of storage, whether or not storage is at the direction of BVNC, will be for the account of the Customer;

3. the Customer irrevocably gives BVNC, its agents and servants, leave and licence without the necessity of giving any notice to enter at any time on and into any premises occupied by the Customer, forcibly, if necessary, to inspect, search for or remove any of the Products supplied; and

4. if any part of all the Product supplied have been sold by the Customer before payment in full of all outstanding indebtedness of the Customer, then the proceeds and debts of the Customer arising from the on-sales will be the property of BVNC and will be held on a fiduciary basis separately for its account, not mixed with the Customer’s other money, debts or property and payable immediately without demand. BVNC has the right to trace the proceeds of any such sales in accordance with equitable principles.

4.3 Unless BVNC gives written approval otherwise, the Customer will insure the Products to at least their contract value in both BVNC’s and the Customer’s names against theft, fire, accidental or malicious damage, flood or storm. The Customer will pay all premiums for insurance of the Products when due.

4.4 The obligations of this clause 4 survive termination of this Agreement and continue to the extent that BVNC may exercise the rights under this Agreement to recover its property and any money due to it.

 

5 PPSR

5.1 The Customer acknowledges and agrees that, in order to secure payment or performance of the Customer’s obligations, this Agreement:

1. constitutes a security agreement for the purposes of PPS Act;

2. permits BVNC to register its security as a PMSI to secure Products that were supplied and will be supplied, including the proceeds of sale of Products, and all present and after acquired property;

3. permits BVNC to register its security on any as a general security interest over the Customer’s present and after acquired personal property; and

4. permits BVNC to charge the Customer any costs associated with the registration and enforcement of their security interest.

5.2 The Customer acknowledges that all Products acquired under this Agreement constitute commercial property for the purposes of the PPS Act.

5.3 The Customer undertakes to:

1. promptly obtain consents, complete and sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which BVNC may reasonably require to:

   1. register a financing statement or financing change statement in relation to any security interest on the PPSR;

   2. register any other document required to be registered by the PPS ACT; or

   3. correct a defect in a statement referred to in clauses 5.3(a)(i) or 5.3(a)(ii) ;

2. indemnify, and upon demand reimburse, BVNC for the expenses incurred in registering a financing statement or financing change statement on the PPSR or discharging any property charged;

3. not register, or permit to be registered, a financing statement or a financing change statement in favour of a third Party without the prior written consent of BVNC; and

4. immediately advise BVNC of any material change in its business practices.

   1. The Customer agrees to complete all things reasonably necessary to assist BVNC for the purposes of:

1. ensuring that the security interest is enforceable, perfected and otherwise effective under the PPS Act;

2. permitting BVNC to apply for any registration, complete any financing statement or financing change statement or give any notification in relation to the security interest;

3. allowing BVNC to gain first priority for its security interest; and/or

4. allowing BVNC to exercise rights in connection with its security interest.

   1. The Customer must not:

1. create any Security Interest or lien over any of the Customer’s personal property, other than any security interests granted in favour of BVNC;

2. sell, lease, or dispose of its interest in the Customer’s personal property;

3. give possession of the Customer’s personal property to another party, except where BVNC provides express assent for it to do so;

4. permit any of the Customer’s personal property to become an accession to or commingled with any asset that is not part of the Customer’s activities; and/or

5. do any of the following without first providing BVNC 15 Business Days’ Notice of:

   1. its new name;

   2. the relocation of its principal place of business outside Australia; or

   3. the change in its place of registration or incorporation.

5.6 The Customer acknowledges that the Customer and BVNC may enter into one or more additional security agreements under which the Customer guarantees or grants further security to BVNC for the performance of the Customer’s obligations under this Agreement.

5.7 The Parties agree that neither Party is to disclose information of the kind mentioned in section 275(1) of the PPS Act, except where required by section 275(7). BVNC is permitted to use personal information of the Customer for the purposes of registering and enforcing the security interest under the PPS Act.

5.8 The Borrower and Guarantor waive any right to receive any Notice required to be provided under the PPS ACT in respect of any security interest, unless the obligation to provide Notice cannot be waived or excluded.

5.9 To the extent that section 115(1) of the PPS Act permits, sections 125, 132(3)(d), 132(4), 142 and 143 of the PPS Act will not apply to any security interest created under this Agreement.

5.10 To the extent that section 115(7) of the PPS Act permits, sections 127, 129(2), 130, 132, 134(2), 135, 136(3)–(5) and 137 of the PPS Act will not apply to any security interest created under this Agreement.

5.11 The Customer shall unconditionally ratify any actions taken by BVNC under clause 5 of this Agreement.

 

6 Warranties & Consumer Guarantees

6.1 Except as expressly set out in these terms and conditions, the Customer makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Product. BVNC’s liability in respect of these warranties is limited to the fullest extent permitted by law.

6.2 The Customer must inspect the Product on Delivery and within fourteen (14) days notify BVNC, in writing, of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Product as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow BVNC to inspect the Product and, if deemed necessary, have first option to make good.

6.3 The Customer acknowledges and warrants that it has not relied on any representation by BVNC, its employees, its agents or any other person in entering into and accepting this Agreement. To the extent permitted by law, BVNC expressly disclaims any warranty express or implied in relation to the Products that is not contained within this Agreement.

6.4 BVNC acknowledges that the Products provided under this Agreement come with guarantees that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the Products or Services fail to be of acceptable quality and the failure does not amount to a major failure.

6.5 To the extent BVNC is held at law to be liable to the Customer, the maximum extent of BVNC’s liability to the Customer will be, in BVNC’s discretion, a resupply of the Products or a refund of the amount of monies paid by the Customer in relation to the defect for which BVNC is held to be liable.

6.6 Without limiting the foregoing, BVNC expressly confirms that BVNC will not be liable for any failure where such failure is attributable to the Customer or to a breach of this Agreement by the Customer, to BVNC exercising any right(s) under this Agreement or an event of Force Majeure.

6.7 Each Party warrants that, at the date of this Agreement and at all stages during the operation of this Agreement:

1. no Insolvency Event has occurred with respect to that Party;

2. where the Party is a body corporate:

   1. it is duly incorporated and validly existing under the laws of the place of its incorporation;

   2. it has the power to enter into and perform its obligations under this Agreement;

   3. the execution and performance by it of this Agreement does not violate in any respect a provision of:

      1. a law, treaty or a judgement, ruling, order or decree of a governmental authority or agency binding it;

      2. its constitution, memorandum, articles of association or any other constituent documents; or

      3. any other document or agreement which is binding on it or its assets; and

   4. it is not subject to an Insolvency Event; and

3. where the Party is a natural person:

1. the Party has the legal capacity to enter into this Agreement; and

2. the execution and performance by the Party of this Agreement does not violate in any respect a provision of:

A. a law, treaty or a judgement, ruling, order or decree of a governmental authority or agency binding it; or

B. any other document or agreement which is binding on the Party; and

1. the Party is not subject to an Insolvency Event.

1. each Party has all the permits, licences, certificates and accreditation necessary to perform their obligations under this Agreement;

2. each Party will not be in breach of any relevant law or any obligation owed to another person by entering into and performing the obligations under this Agreement;

3. there are no unsatisfied orders, judgments or awards against the Party and the Party is not a plaintiff or defendant or otherwise a party to any litigation, arbitration or mediation proceedings and there is no circumstance which is likely to give rise to any such proceedings except as otherwise notified in writing; and

4. the Party is not the subject of any investigation, enquiry or enforcement proceedings by any Regulatory Authority and there is no circumstance which is likely to give rise to any such investigation, enquiry or enforcement proceedings except as otherwise notified in writing.

6.8 Each warranty given pursuant to this clause 6 is to be treated as a separate warranty and is not limited by reference to any other warranty or any other provision of this Agreement.

6.9 Except as expressly set out in this Agreement, no warranty is excluded or limited by any inquiry or investigation made by the Party who has the benefit of the other Party’s warranty or any actual or constructive notice that any Warranty is or may be incorrect.

 

7 Returns & Cancellations

1. BVNC may in its absolute discretion accept non-defective Product for return in which case BVNC

may require the Customer to pay handling fees as set out in the Rates Schedule addendum plus any freight costs.

7.2 Subject to clause 6, custom, or non-stocked items or any Product made or ordered to the Customer’s specifications are not acceptable for credit or return.

1. Subject to the above and clause 6, returns will only be accepted provided that:

1. the Customer has complied with the provisions of clause 6.2; and

2. the BVNC has agreed that the Product is defective; and

3. the Product is returned within a reasonable time at the Customer’s cost; and

4. the Product is returned in as close a condition to that in which they were delivered as is possible.

5. BVNC must be convinced that Product which has left its control have returned in a condition that could be resaleable as a new Product, suited for purpose as an engineering solution, without risk of failure and of the quality expected from Mason Mounts.

7.4 Notwithstanding clauses 6 but subject to the ACL, BVNC shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

1. the Customer using the Product for any purpose other than which they were designed;

2. the Customer failing to properly store or maintain the Product;

3. the Customer continuing the use of any Product after an defect became apparent or should have become apparent to a reasonably prudent operator or user;

4. the Customer failing to follow any instructions or guidelines required by the manufacturer or provided by BVNC;

5. fair wear and tear, any accident, or act of God.

   1. Notwithstanding anything contained in this clause if BVNC is required by a law to accept a return, then BVNC will only accept a return on the conditions imposed by that law.

7.6 Without prejudice to any other remedies BVNC may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BVNC may suspend or terminate the supply of Product. BVNC will not be liable to the Customer for any loss or damage suffered due to BVNC exercising its rights under this clause.

7.7 BVNC may cancel any Contract to which these terms and conditions apply or cancel Delivery of Product at any time before delivery by giving written notice to the Customer. On giving such notice BVNC shall repay to the Customer any monies already paid for this Product. BVNC shall not be liable for any loss or damage whatsoever arising from such cancellation.

7.8 If the Customer cancels Delivery of Product, they shall be liable for all losses incurred (whether direct or indirect) by BVNC as a direct result of the cancellation (including, but not limited to, any loss of profits).

7.9 Cancellation of orders for Product made to the Customer’s specifications, or for non-stocked items, will not be accepted once production has commenced, or an order has been placed.

 

8 Intellectual Property

8.1 The Customer acknowledges that the all Intellectual Property rights in the Products and any materials provided to the Customer are and remain the sole property of BVNC or under licence to BVNC from a third party, and the Customer will not in any way question, dispute or infringe them.

8.2 Nothing in this Agreement will function to transfer any of either Party’s Intellectual Property rights and will not affect the ownership or licence rights of Intellectual Property rights made available by either Party under this Agreement.

8.3 Subject to subclause 7.4, any Intellectual Property created by the Customer, either alone or with others, in the course of the Customer using the Products pursuant to this Agreement, vests in BVNC on creation and the Customer assigns to BVNC all existing and future rights the Customer may have in all such Intellectual Property.

8.4 Ownership of rights in any Intellectual Property created otherwise than in the course of this Agreement remains with the creator of such Intellectual Property.

8.5 The Customer shall promptly and fully disclose to BVNC all discoveries, improvements and inventions made or conceived by Customer or their Representatives, whether solely or jointly with others, in the course of using the Products. Such discoveries, improvements or inventions, whether or not constituting Intellectual Property rights capable of protection, shall remain the sole and exclusive property of BVNC.

8.6 Moral Rights may subsist in the Works which have been created by Customer in the course of the this Agreement and the Customer acknowledges that BVNC may, from time to time, do any act, or make any omission, where such act(s) or omission(s) would otherwise constitute an infringement of the Customer’s Moral Rights in accordance with Part IX of the Copyright Act 1968 (Cth).

8.7 The Customer agrees, where it is necessary to do so, to provide written consent to BVNC to do such act(s), or make such omission(s), where such act(s) or omission(s) constitutes an infringement of the Customer’s Moral Rights or that of the Customer’s employees, officers or agents.

8.8 The Customer will report to BVNC any apparent infringements of the Intellectual Property rights by third parties which come to the notice of the Customer, and BVNC has the sole right to determine what action, if any, should be taken in respect of any infringement, and the Customer agrees that it will co-operate in the conduct of any action brought by BVNC.

8.9 If any action for alleged infringement of Intellectual Property rights relating to the Products is brought by a third party against the Customer, BVNC will furnish any information which is available to BVNC and provide all assistance requested by the Customer for the defence of the action but BVNC is under no obligation to indemnify the Customer for any costs or liabilities which may arise out of or in connection with the action.

8.10 Notwithstanding that the Customer is prevented from using any of the Intellectual Property rights or selling any of the Products as a result of any action by a third party referred to in clause 8.9, or Customer discontinues use of the Intellectual Property rights or sale of any of the Products as a result of advice from BVNC that the continued use of the Intellectual Property rights or sale of the Products may infringe a third party's right, this Agreement will continue in effect with respect to all other Intellectual Property rights and Products without liability to BVNC.

8.11 The obligations of this clause 8 survive termination of this Agreement.

 

9 Confidentiality

9.1 The Parties acknowledge that during the course of conducting each Party’s rights and obligations under this Agreement, each Party may become aware of, or be made aware of information which the other Party considers to be Confidential Information.

1. Except to the extent permitted by this Agreement, each Recipient agrees that it:

1. will hold all Confidential Information in strict confidence and not disclose it or otherwise make it available to any person;

2. will not use any Confidential Information for any purpose other than the purpose for it being disclosed under this Agreement;

3. will not use any Confidential Information for its own commercial advantage or to the potential disadvantage of the Discloser or any Related Entity;

4. will not copy, extract, record or reproduce any Confidential Information except to the extent necessary to carry out the purpose for its disclosure; and

5. will maintain the secrecy and security of all Confidential Information and will store all Confidential Information in a way which, at all times, protects it from unauthorised access, use, copying, reproduction or disclosure but can be retrieved.

9.3 A Recipient may not disclose any Confidential Information to any third party, nor cause or allow such Confidential Information to any third party, and further warrants that it will not disclose, nor cause or allow to be disclosed, any Confidential Information to any third party, except:

1. with the express written consent of the Party to whom the Confidential Information belongs; or

2. to the extent that it is required by law to do so.

9.4 Notwithstanding clause 9.3 above, both Parties may disclose Confidential Information to its Representatives, provided only that such disclosure is:

1. reasonably necessary;

2. made subject to confidentiality agreements imposing similar obligations on the recipient of Confidential Information to this clause 9; and

3. limited in scope to the extent that it is necessary.

9.5 If any Party is uncertain as to whether any information is Confidential Information, that Party will treat the information as if it were Confidential Information and not being in the public domain unless and until the other Party agrees in writing that the information is in the public domain.

9.6 Each Recipient acknowledges that its obligations under this clause 8 are in addition to, and nothing in this Agreement limits, any common law or equitable obligations of confidence owed to a party or its related bodies corporate by the other party or its Representatives.

9.7 The Parties agree that, within 10 Business Days of termination of this Agreement, the Recipient will:

1. return to the Discloser or, as may be requested by the Discloser, destroy or procure the destruction of all documents and materials containing Confidential Information in the possession, power or control of the Recipient or its Representatives, whether or not it was created by the Recipient or its Representatives; and

2. delete, or procure the deletion of, any Confidential Information that has been entered into a computer, database or other electronic means of data or any other information storage medium by or on behalf of the Recipient or its Representatives.

9.8 Within 3 Business Days of complying with clause 8.7, the Recipient will give written confirmation to the Discloser that to the best of it’s knowledge and belief all of the Confidential Information had been returned, destroyed or deleted in accordance with the Notice given in clause 8.7 and that if any further Confidential Information is later found, it will be returned, destroyed or deleted as appropriate.

9.9 The Parties agree that the Recipient will not, and will procure that each of its Representatives does not, use or make any further disclosure of any Confidential Information except as permitted by this clause 9.

9.10 When a Representative of a Recipient ceases to be a Representative, the Recipient must immediately take possession of all Confidential Information in the possession, power or control of that person and must procure that that person does not use or make any further disclosure of any Confidential Information.

9.11 This clause 9 does not apply to any Confidential Information to the extent that:

1. the Confidential Information forms part of the minutes of the board of directors, a committee of the board of directors of the Recipient or a Related Entity of the Recipient containing a level of detail consistent with the normal practices of the Recipient or that Related Entity;

2. the Recipient or any Representative of the Recipient holding Confidential Information is required by law or the rules of any Regulatory Authority or any mandatory rule of professional standards applying to the Recipient or the relevant Representative to retain a copy of the Confidential Information;

1. the Confidential Information forms part of any legal advice, legal opinion or legal due diligence report prepared for the Recipient provided that copies of the Confidential Information retained by the Recipient's lawyers on its behalf must only be used in connection with the bringing of an action or claim or the defence of an action or claim under or in connection with this Agreement, the Purpose or a Transaction; and

2. if a Recipient or its Representatives retain any Confidential Information in accordance with this clause 4.5, the Recipient must provide the Discloser with a list of all Confidential Information retained and details of how that information will be stored.

9.12 If either Party believes on reasonable grounds that Confidential Information has been disclosed, whether or not the other Party is responsible for such disclosure, that Party believing on reasonable grounds that Confidential Information has been disclosed must serve notice (Disclosure Notice) to the other Party:

1. notifying the other Party of any suspected unauthorised disclosure of the Confidential Information;

2. the scope of the Confidential Information in that disclosure; and

3. the grounds upon which that belief is founded.

9.13 If a Disclosure Notice is issued, the Recipient do all things necessary to assist Discloser to:

1. limit any further disclosure of the Confidential Information;

2. recover any copies of inadvertent or unauthorised disclosure of Confidential Information;

3. investigate the cause of the inadvertent disclosure of Confidential Information and take all steps necessary to reduce the risk of further inadvertent disclosure to the satisfaction of the Discloser; and

4. institute legal proceedings, or join the Discloser in instituting legal proceedings, against the source of the unauthorised disclosure.

9.14 Unless otherwise agreed, if any action is taken under clause 9.13 above, each Party shall bear its own costs.

9.15 Each Party acknowledges that damages alone would not be adequate to compensate the Discloser or its Related Entity for any breach of this clause 8 and agrees, for itself and on behalf of each of its Representatives, that the Discloser may seek an injunction on its own behalf, or as trustee for any Related Entity, for any breach or threatened breach of this Agreement.

9.16 These obligations of this clause 9 survive the termination of this Agreement.

 

10 Liability & Indemnity

10.1 Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.

10.2 Notwithstanding any other provision of this Agreement, BVNC is in no circumstances liable in contract, equity or tort (including without limitation, for 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 howsoever caused.

10.3 The Customer indemnifies BVNC against, and must pay on demand the amount of, any loss, cost, charge, damage, expense or other liability suffered or incurred by BVNC or any Related Entity (including all legal costs on a solicitor-client basis and all other professional expenses) arising out of or in connection with any of the Customer’s breaches of this Agreement, including a breach of any obligation to procure that their Representatives do or omit to do anything.

10.4 The amount of any claims, damages, interest, costs and expenses which may be paid, suffered or incurred by BVNC in respect of such loss, damage or injury must be made good at the Customer's expense and may be deducted from any moneys due or becoming due to the Customer.

10.5 This clause 10 survives the termination of this Agreement.

 

11 Default & Termination

11.1 It is an Event of Default if:

1. the Customer breaches or fails to observe or perform any covenant contained in or implied in this Agreement (including failing to pay any invoice on or before the date for payment) or the Credit Agreement and that breach, non-observance or non- performance shall continue for 5 Business Days;

2. the Customer breaches any warranty or representation given under this Agreement or the Credit Agreement;

3. all or part of this Agreement is void, avoided, illegal, invalid, unenforceable or limited in its effect or it becomes impossible for the Customer to perform a material obligation under this Agreement;

4. the Customer commits an Insolvency Event;

5. there is a material adverse change in the Customer’s business;

6. effective control of the Customer is altered to any material extent from that as at the date of this Agreement, without BVNC’s consent, which includes changes to the control of composition of the board, control of more than half the voting power of the Customer or half of the share capital of the Customer;

7. the Customer purports to create a PPS Security Interest over the Products or any part of it without the prior express written consent of BVNC;

8. the other party attempts to assign this Agreement other than in accordance with this Agreement;

9. the Customer is prevented from using any of the Intellectual Property or selling any of the Products as a result of any action by a third party; or

10. the Customer discontinues use of any of the Intellectual property Rights or sale of any of the Products as a result of advice from BVNC that the continued use of the Intellectual Property Rights or sale of the Products may infringe a third party's rights.

11. if the authority or power of the Customer to perform any of its obligations under this Agreement is revoked or so amended such that the Customer is unable to fully and duly perform and observe those obligations; and

12. the continued performance of the obligations of the Customer under this Agreement contravenes, or might in BVNC's opinion contravene, any applicable law, rule, order or regulation.

11.2 BVNC may suspend the provision of any and all Products and/or Services during the continuing occurrence of any Event of Default or where the agreed Credit Limit has been exceed.

11.3 If an Event of Default occurs, BVNC may elect to terminate this Agreement by giving notice that such Event of Default shall be remedied within 10 Business Days (Default Notice).

11.4 If an Event of Default is not remedied within the time in the Default Notice, BVNC may give notice to the Customer terminating this Agreement (Termination Notice) and the Customer shall pay to BVNC all Fees incurred to the date of termination and any Fees or other costs or expenses incurred by BVNC or otherwise payable under this Agreement as a result of such Event of Default or termination.

11.5 If this Agreement is terminated by BVNC, then the Customer will forfeit any deposit paid and all money owing will become immediately due and payable.

11.6 This Agreement does not affect any rights or liabilities which have accrued to either party before termination, nor any liabilities which may arise from damages deriving from a breach of this Agreement before termination.

1. The liability of the Customer shall not be affected by:

1. any time or indulgences given or extended to the Customer or any other persons;

2. any subsequent transaction or arrangement between BVNC and any other person;

3. any amendment, variation, discharge or assignment of any other agreement;

4. any act, omission, breach or default on the part of BVNC which may have, but for this provision, affected the liability of any person to BVNC;

5. the death, incapacity or bankruptcy of a director of the Customer or any other person;

6. the winding up or liquidation of any company; or

7. any extension, variation or amendment of any terms of this Agreement.

11.8 During any time after an Event of Default or after the Customer fails to comply with any of its obligations under this Agreement, the Customer irrevocably appoints BVNC, each director of BVNC and all BVNC’s assigns and successors severally as attorney of the Customer to do all acts and things necessary as may, in BVNC’s opinion, be reasonably necessary or expedient to give effect to any right or power conferred on BVNC by this Agreement.

11.9 BVNC reserves the right to report any Event of Default to credit reporting agencies.

 

12 Third Party Dealings

12.1 For the term of this Agreement and for a period of 6 months after the Termination Date, the Customer must not, and must procure that its Representatives do not, directly or indirectly induce or encourage any employee of BVNC or a Related Entity to leave the employment of BVNC or its Related Entity or interfere with the relationship between BVNC or a Related Entity with any of their respective customers, employees or suppliers.

1. This clause 12 does not prevent the Customer from:

1. advertising employment vacancies, except where targeting BVNC or Related Entity employees or interviewing and negotiating with any person responding to that advertisement;

2. employing any person who, on their own initiative, seeks employment with the Recipient or it’s Representative; or

3. generally competing with the BVNC or a Related Entity.

12.3 The Customer acknowledges that any breach of this clause would cause irreparable harm and significant damage to BVNC and BVNC has the right to seek injunctive relief in relation to such breach.

12.4 The Customer agrees that the covenants in this clause are fair and reasonable and that BVNC relies on this acknowledgement in entering into this Agreement.

12.5 This clause 12 survives termination of this Agreement.

 

13 Dispute Resolution

13.1 If a dispute or difference arises in respect of any fact, matter or thing arising out of, or in any way in connection with, this Agreement, or the conduct of a Party in relation to the subject matter of this Agreement at any time and is not required to be determined in accordance with a procedure in another clause in this Agreement, the dispute or difference must be determined in accordance with the procedure in this clause 13.

13.2 If a dispute defined in clause 13.1 arises, a Party may give notice to each other Party specifying that there is a dispute, the particulars of the dispute, their position and how they propose the dispute be settled (“Dispute Notice”).

13.3 If a Dispute Notice is given, the Parties will either individually or procure their Representative to meet and undertake negotiations in good faith with a view to resolving the dispute or difference specified in that Dispute Notice.

13.4 If the dispute is not resolved within 10 Business Days of service of the Dispute Notice, the dispute or difference must be referred to mediation. The Parties shall agree on a mediator but if they cannot agree on a mediator within 14 Business Days of service of the Dispute Notice, then any of the Parties may apply to the then President of the Law Society of Western Australia to appoint an appropriately experienced mediator, with such decision being binding on all Parties.

13.5 The Parties shall, within 21 Business Days of the Dispute Notice, provide unavailable dates and the reason for the unavailability to the mediator. The Parties shall comply with all directions of the mediator in relation to the conduct of the mediation, including the time, date and place of the mediation, which is to occur within 40 Business Days of service of the Dispute Notice.

13.6 If the dispute specified in a Dispute Notice is not resolved within 40 Business Days of service of the Dispute Notice, any Party may terminate the mediation process.

1. This clause 13 survives the termination of this Agreement.

 

14 Notices

14.1 Any notice or demand under this Agreement is not effective unless such notice is:

1. in writing and in English; and

2. must be typed or written in legible handwriting; and

3. signed by the Party making it; and

4. served on the other Party by:

   1. email to the address nominated by that other Party; or

   2. registered post to the address nominated by that other Party; or

   3. hand delivered to that other Party, or if that other Party is a body corporate, an officer of that other Party having the legal authority to bind that Party.

14.2 The Party receiving the notice shall, upon receipt of such notice, send a written notice to the sender of the notice using the same method of transmission as the notice that the sender used to send such notice, advising the sender that the notice has been received.

14.3 Notwithstanding clause 14.2 above, any notice or demand under this Agreement is deemed to have been received by the other Party where:

1. sent to BVNC at BVNC’s Contact and to the Customer at the Customer’s Address;

2. if that notice is served by email, within one hour of the time stamp notifying the time on which the email is sent, unless the time that the recipient is deemed to have received this email in accordance with this clause is not on a Business Day, or after 4:00pm on a Business Day, in which event that notice is deemed to have been received at 9:00am on the next Business Day;

3. if by prepaid post, at 9.00AM on the fifth day after it is posted, if posted from within Australia, or the tenth day after postage, if posted from outside Australia, excluding the day of postage; and

4. if personally served, at the date and time it is personally served.

14.4 The Customer is aware that BVNC may engage legal advice in relation to this Agreement and has the same right to do so. If the Customer wishes to have a legal representative deal with any part of this Agreement, then BVNC will defer to its representative; Laird Lawyers Commercial Lawyers

Level 29, 221 St Georges Terrace, PERTH WA 6000.

 

15 General

15.1 Unless otherwise provided each Party must bear their own costs and expenses in relation to performing its obligations under this Agreement.

15.2 The Parties agree that nothing contained or implied in this Agreement will be deemed or construed to create the relationship of partnership, agency or joint venture between the Parties.

15.3 Each Party will promptly do and perform, and procure its employees and agents to promptly do and perform, all acts and things and execute all documents as may from time to time be required, and at all times will act in good faith, for the purposes of or to give effect to this Agreement.

15.4 The Customer agrees that the Customer may not partially or wholly assign, novate, subcontract, encumber or otherwise deal with the Customer’s rights and obligations under this Agreement without the express written consent of BVNC. BVNC may assign, novate, subcontract, encumber or otherwise deal with its rights and obligation by giving written notice to the Customer.

15.5 The Parties agree that this Agreement shall be construed in accordance with the laws of Western Australia and irrevocably submit to the exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia, and any court of Australia having competent jurisdiction to hear appeals from such courts.

15.6 Any variation to this Agreement is not valid unless it is in writing and signed or initialled by both Parties, and such variation shall take effect from the next Business Day, or any other date as may be agreed by the Parties in writing and specified in the variation.

15.7 A failure or delay to exercise any right, power or remedy by either Party under this Agreement shall not be construed as a waiver, unless such waiver is expressed in writing.

15.8 The fact that a Party fails to do, or delays in doing, something the Party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another Party.

15.9 A waiver by a Party is only effective if it is in writing and served on the other Party. A written waiver by a Party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

15.10 Each term, condition or stipulation in this Agreement is separate and severable from the others and the invalidity of any term, condition or stipulation of this Agreement shall not affect the validity of the remaining terms, conditions, or stipulations of this Agreement or the validity of the Agreement itself.

15.11 Where any provision of this Agreement, or any part thereof, infringes upon, or is otherwise inconsistent with any law of Western Australia or the Commonwealth of Australia:

1. such term or condition shall be construed in a manner that removes the inconsistency, but only to the extent of that inconsistency, and such construction shall not affect the validity or enforceability of the remainder of that provision; or

2. where such term or condition cannot be so construed, it shall be deemed void and severable from the Agreement, without thereby affecting the validity or enforceability of the remainder of the provisions of this Agreement.

15.12 Any clause which expressly or by its nature survives the termination of this Agreement shall remain in full force and effect, notwithstanding termination.

15.13 This Agreement may be executed in any number of counterparts, all of which, when taken together, shall constitute one agreement.

15.14 This Agreement constitutes the entire agreement between the Parties, and supersedes all negotiations, representations or prior agreements, whether written or oral, in respect of the subject matter of this Agreement. The Parties acknowledge that BVNC will only provide the Products on the terms of this Agreement and the terms of this Agreement prevail at all times, regardless of timing of exchange of documents.

15.15 If a Party’s performance of its obligations under this Agreement, except a failure to pay money, is delayed or prevented by reason of Force Majeure, which includes without limitation any event beyond the Party’s control such as industrial disputes, Acts of Parliament, embargo, litigation, Court Orders, civil strife, terrorism, war, fire, flood or Acts of God, the parties shall endeavour to agree an alternative or amendment and, if they are unable to agree and the force majeure event continues for more than 30 days, either party may terminate this Agreement and neither party will have any entitlement to recover any loss or damage as a result of such delay or termination.

15.16 The parties agree that before entering into this Agreement, they have sought or had the opportunity and elected not to obtain independent legal advice on the terms of the Agreement.

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