1. DEFINITIONS AND INTERPRETATION
1.1 Business Day means a day which is not a Saturday, Sunday or public holiday in Victoria; Confidential Information means any trade secrets, know-how, technical, scientific, commercial, financial, product, market or pricing or other information of or about Waproo to which Customer gains access in connection with this Contract; Contract means the contract entered into between Waproo and Customer for the supply of Goods pursuant to an order made by or on behalf of Customer and these Terms; Customer means the customer nominated in the Contract; Goods means any goods to be supplied by Waproo to Customer; Intellectual Property means all intellectual property rights throughout the world, whether present or future, registered or unregistered, including the right to apply for registration of any such rights; Loss means any damage, loss, liability, cost, charge, expense, penalty, outgoing or payment (whether direct or indirect, consequential or incidental); Price means the price of the Goods excluding GST; Specifications means Waproo's specifications for Goods;
1.2 Specifying anything after the words "including” or similar expressions does not limit what else is included unless express wording to the contrary.
2. ORDERS AND SPECIFICATIONS
2.1 No order which has been accepted by Waproo may be cancelled by Customer except with the written agreement of Waproo and on terms that Customer indemnifies Waproo against any Loss Waproo pays, suffers, incurs or is liable for as a result of cancellation.
2.2 Customer agrees that these Terms apply to the Contract to the exclusion of any other terms, including any on printed documents issued by Customer at any time and are in addition to all other rights which Waproo may have at law. Any waiver by Waproo of any right is not a waiver of any other or future rights Waproo may have.
2.3 Waproo may make any changes to the Specifications, the specifications of the Goods or any packaging including to conform to safety or other statutory requirements.
3. PRICE AND GST
3.1 Unless the context indicates otherwise, terms defined or used in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
3.2 Unless varied by Waproo or required by law, Price is exclusive of GST.
3.3 Any rebates, discounts, allowances or other reductions in price calculated by reference to the sales value to which Customer is entitled or which are granted by Waproo (Discounts) are to be calculated on the Price.
3.4 Unless expressly stated to be inclusive of GST, the consideration for any taxable supply made by a party (Supplier) under or in connection with these Terms does not include GST and may be increased by the Supplier by an amount equal to the GST payable on that taxable supply. If an adjustment event occurs the Supplier must issue an adjustment note to the recipient and the difference between the GST payable on the supply (taking into account any adjustments) and the amount of GST included in the price for the supply must be paid by or refunded to the recipient, as applicable. Any amount to be reimbursed or indemnified in connection with these Terms must be reduced by an amount equal to any input tax credit to which the party being reimbursed is entitled in respect of that amount.
3.5 Waproo reserves the right, at any time before delivery, to increase the Price (including for any Goods to be supplied under an agreement to which these Terms apply for the sale, purchase and supply of a quantity of Goods over a period of time and notwithstanding anything contained in such agreement) to, among other things, reflect any increase in costs to Waproo which are due to any factor (including a significant increase in the costs of, or shortages or the unavailability of, labour or materials, the increase or imposition of any tax, duty or other levy, any variation in exchange rates, any change of delivery dates, any change in quantities or specifications of the Goods requested by Customer, or any delay caused by supply or non-supply of instructions of Customer.
4.1 Delivery of Goods to Customer occurs, in the case of Goods to be collected by Customer from Waproo at the agreed time for collection, or in the case of Goods to be delivered at the time Waproo tendered delivery of the Goods. Any time which Waproo quotes for delivery of the Goods is an estimate only.
4.2 Customer bears all government taxes, duties or imposts associated with the provision of the Goods, unless agreed otherwise in writing by Waproo and Customer.
4.3 Where Customer fails to collect or take delivery of the Goods at an agreed time Waproo may charge Customer a service fee. 4.4 Customer must accept and pay for, in fulfilment of its order, delivery of +/- 5% of the quantity specified in its order and must pay for the quantity actually delivered.
5.1 Where Waproo has agreed to extend credit to Customer, Customer must pay for the Goods in full within 30 days from the end of the month in which the Goods were supplied, unless agreed otherwise in writing by Waproo and Customer.
5.2 Discounts will be credited to Customer by Waproo, Customer cannot deduct any Discounts from moneys owing by it to Waproo, Customer must pay Waproo in full for the Goods delivered even if a delay in the delivery of the Goods or Customer disputes the quality, quantity or condition of the Goods delivered or provided. Waproo is entitled to set off any sums owed by it to Customer against the Price.
5.3 If Customer has not paid in full by the due date Waproo may, without limiting any other rights, charge Customer interest on the overdue moneys at the cash rate (displayed about 11.00 am Melbourne time on the Reserve Bank of Australia website on the date of delivery) plus 2%, from delivery of the Goods until paid in full, and take action against Customer for the Price for which payment has not been made, even though title in the Goods remains with Waproo.
6. RISK & TITLE
6.1 Risk of loss or damage to the Goods passes to Customer on delivery.
6.2 Until Customer has paid for the Goods in full and also paid all other moneys due and payable to Waproo, title in the Goods remains with Waproo, Customer holds the Goods as bailee of Waproo and must ensure the Goods are properly stored, separate from all other goods, protected, readily identifiable and clearly marked as owned by Waproo.
6.3 Customer acknowledges that the Contract constitutes a security agreement under the Personal Property Securities Act 2009 (PPSA), that Waproo has a security interest in the Goods (including any Goods to be supplied in the future) and any proceeds, Waproo's rights in the Goods established under this clause 6 are a ‘purchase money security interest’ (PMSI) and Waproo will have a PMSI in proceeds of those Goods. Customer agrees to do anything required by Waproo to enable Waproo to register the security interest and to maintain the registration including by paying (if requested by Waproo) all costs, expenses and other charges incurred by Waproo in preparing, lodging or registering any financing statement or financing change statement in relation to any such security interest, maintaining those registrations, and enforcing any security interests.
6.4 Customer shall not charge the Goods in any way, nor grant or give any interest in the Goods while they remain the property of Waproo, nor allow any third party to acquire a security interest in the Goods.
6.5 If Customer fails to comply with any of these Terms: then Customer must return any Goods on which there are outstanding amounts owing on request; Customer authorises Waproo and any person authorised by Waproo to enter premises where the Goods may be located to take possession of the Goods; and Waproo may retain, sell or otherwise dispose of the Goods.
6.6 Customer agrees to the extent permitted under the PPSA, that the following provisions will not apply when enforcing these Terms: s95 and s130 to the extent it requires Waproo to give a notice to Customer; s121(4); s132(3)(d); s132(4); ss135; s142; and s143, unless otherwise agreed by Waproo and Customer will not disclose, nor authorise the disclosure of, any information of the kind described in s275(1) to any person.
6.7 Unless the context indicates otherwise, terms defined or used in the PPSA have the same meaning as in that Act.
7. FORCE MAJEURE
Waproo is entitled (without liability to Customer) to delay, vary or cancel the performance of any of its obligations if and to the extent that it is prevented from, hindered in or delayed in the performance of any of its obligations by normal route or means of delivery or at costs commercially acceptable to Waproo through any circumstances beyond its control including acts of God, governmental actions, strikes or other labour disputes (whether or not relating to the Company's workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, extreme adverse weather, or the amendment or coming into force of any regulatory provision affecting the import or export of the Goods or any materials for production of the Goods, each a Force Majeure Event.
8. SHORTFALL, DAMAGED AND DEFECTIVE GOODS
8.1 Goods will be considered to have been delivered in full in good condition unless Customer notifies Waproo in writing of the shortfall, damage or defect within 2 Business Days of delivery.
8.2 If Customer gives Waproo notice under clause 8.1, it must preserve the Goods in the state in which they were delivered for 14 days after notice and at Waproo's option, allow Waproo or its representative to inspect the Goods or return some or all Goods to Waproo in the same condition as delivered, except in each case for any normal deterioration due to the passing of time.
9. RIGHT OF ENTRY, RESALE AND TERMINATION
9.1 If Customer (a) enters or threatens to enter into bankruptcy or any other form of insolvency, administration, management or receivership or scheme or arrangement with its creditor; (b) ceases or threatens to cease to conduct business; (c) breaches any of these Terms; or (d) in Waproo's opinion, fails to perform its obligations in a satisfactory manner, engages in unlawful or dishonest activity or fraud, has a conflict of interest or any other misconduct; Waproo may, without affecting its accrued rights and obligations, take possession of and resell the Goods or terminate any Contract immediately by notice to Customer (without liability to Customer) and withhold or suspend any deliveries of Goods or performance of Services pursuant to the Contract.
9.2 Waproo may terminate any Contract at any time by giving Customer no less than 30 days notice in writing, or if a Force Majeure Event continues for 30 days or more, on immediate notice to Customer.
10. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
10.1 Customer must keep all Confidential Information secret unless it comes into the public domain (other than because of a breach of this Contract or any law) and must not use Confidential Information except as necessary for the purposes of this Contract. On termination or expiry of this Contract, Customer must promptly return all Confidential Information to Waproo, or destroy it if Waproo requires.
10.2 Intellectual Property owned by either party at the commencement of the Contract remains the property of that party. Any Intellectual Property developed or created during the performance of the Contract vests in Waproo immediately upon its creation and Customer assigns all right, title and interest in such Intellectual Property to Waproo and will do any further acts or execute any documents required by Waproo to effect such assignment.
11. LIMITATION OF LIABILITY
11.1 These Terms do not exclude or limit guarantees or any other statutory rights that Customer may have under applicable laws including under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).
11.2 To the extent permitted by law: (a) all guarantees, conditions and warranties, express or implied, by law, custom or otherwise are excluded; and (b) Waproo's liability for any Loss arising from a breach of such guarantees, conditions and warranties, or these Terms, is limited to either replacement of the Goods, the supply of products equivalent to the Goods, the repair of the Goods, or the cost of replacing the Goods or acquiring products equivalent to the Goods, or the payment of the cost of having the Goods repaired.
11.3 To the extent permitted by law, Waproo will not be liable for any Loss which Customer pays, suffers, incurs or is liable for any reason, including as a result of delay, negligence or any act, advice, matter or thing done or permitted or omitted to be done by Waproo, its employees or agents in any way connected with or arising out of these Terms.
11.4 Customer indemnifies Waproo against any Loss which Waproo pays, suffers, incurs or is liable for in connection with any breach of these Terms, or negligence, by Customer.
12. PRIVATE LABEL
12.1 Where Customer wishes Waproo to supply Goods to Customer on a private label basis, at Customer's option, Customer shall either reimburse Waproo for the initial design/artwork costs associated with the private branded packaging and labels (Set-up Costs) or alternatively, the Set-up Costs shall be amortised into the price of the finished Goods.
12.2 Where the Set-up Costs are amortised into the price of the finished Goods and within a two year period, Customer wishes to change the design, Customer shall reimburse Waproo for that part of the Set-up Costs that has not already been paid by Customer (in other words, the unamortised part of the Set-up Costs).
12.3 Customer shall notify Waproo on a quarterly basis of its estimated demand for private label Goods to enable Waproo to purchase appropriate quantities of packaging and labels. 12.4 If Customer decides to discontinue with the private label range for any reason whatsoever: it shall provide Waproo with at least 3 months notice of its decision, it shall be deemed to have placed an order with Waproo for all remaining stock of private label finished Goods, it shall reimburse Waproo for its costs in purchasing unused private branded packaging and labels and, if applicable, it shall reimburse Waproo for the unamortised part of the Set-up Costs.
13.1 Waproo may vary these Terms at any time by notice to Customer.
13.2 If any part of this Contract is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Contract.
13.3 These Terms are governed by and construed in accordance with the laws of Victoria, Australia and each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia.