TRADING TERMS AND CONDITIONS - COLEXON AUSTRALIA PTY LTD

In these terms and conditions:
Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in Melbourne, Australia, and concludes at 5 pm on that day;
Colexon means Colexon Australia Pty Ltd ACN 136 795 214 and its successors and assigns;
Conditions means these terms and conditions;
Contract means any written or oral contract, agreement, arrangement, transaction or dealing entered into or made by Colexon with a Customer for the supply of Goods to the Customer;
Customer means, in respect of each Contract entered into by Colexon, the person with whom Colexon contracts and where there is more than one person contracting with Colexon under a Contract, each of those people jointly and severally;
Delivery means delivery by Colexon to the Location or any other location nominated by the Customer;
Goods means anything hired, supplied or provided by Colexon to a Customer under a Contract and includes any related services which may be agreed to be provided by Colexon;
GST means any form of goods and services tax payable under the GST Legislation;
GST Legislation means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time;
Infrastructure means all electrical and plumbing infrastructure and installations at the Location;
Laws means all laws, rules, regulations and codes and the requirements and directions of any relevant Commonwealth, state and local government departments and other bodies;
Location means the location at which the Goods are to be delivered and/or installed; and
Order means a purchase order for Goods or a request made by the Customer that Goods be supplied by Colexon, which order will be in a form specified by Colexon.

(a)    These Conditions apply to each contract for the supply of Goods by or on behalf of Colexon to the Customer.
(b)    These Conditions are taken to be incorporated into all Contracts.  Colexon is only prepared to provide Goods on these Conditions and no Contract will exist between Colexon and Customer except on these Conditions.  Any Order placed by a Customer will incorporate these Conditions regardless of any inconsistencies in the Customer’s Order.
(c)    These Conditions together with the relevant Order constitute the entire agreement between Colexon and the Customer.
(d)    Colexon may terminate an Order prior to Delivery or collection of the Goods by the Customer.
(e)    A Customer must not cancel or vary an Order or terminate a Contract without the prior written consent of Colexon. The Customer indemnifies Colexon in respect of all direct and indirect costs, expenses and losses incurred as a result of that cancellation or termination.

(a)    Customer acknowledges that any quotation given by Colexon to Customer (whether in writing or otherwise) is indicative and approximate only and that Colexon is not bound by the quotation.
(b)    If any Goods are to be delivered to Customer under the Contract and unless Colexon and Customer otherwise agree, Customer will bear all costs and expenses incurred in the delivery to Customer and, if necessary, the re-delivery to Colexon of the Goods.
(c)    The Price may be varied by Colexon for any reason including, without limitation, additional transportation, packing, freight, storage, handling, insurance, government, statutory or regulatory charges that relate to the supply of the Goods (if any).
(d)    Unless otherwise expressly stated, the Price is exclusive of GST. If GST is, or becomes, payable in respect of any supply made by Colexon to the Customer, the payment for that supply will be increased by an amount equal to the GST payable in accordance with clause 11.
(e)    Colexon will issue an invoice to the Customer for the Goods upon delivery of the Goods to the Customer or collection of the Goods by the Customer from Colexon’s premises.

3.2    Initial invoicing arrangements
Unless otherwise specified in writing by Colexon and subject to clause 3.3, the Customer will pay the Price to Colexon upon the date on which the Customer submits an Order to Colexon. Payment will be made by electronic funds transfer to an account nominated by Colexon or by such other means as may be specified by Colexon.

3.3    Invoicing of ongoing Customers
If a Customer has placed an Order with Colexon for the supply of Goods over a period of four months or more the Customer will pay the Price to Colexon no later than thirty (30) days from the date of the invoice provided pursuant to clause 3.1(e). Payment will be made by electronic funds transfer to an account nominated by Colexon or by such other means as may be specified by Colexon.

4    RISK AND OWNERSHIP OF GOODS
(a)    Risk of loss, or damage, to the Goods passes to the Customer on delivery which will occur on the earliest of the following events:
(i)    the Customer taking possession of the Goods from Colexon's premises;
(ii)    commencement of the loading of the Goods onto a transportation vehicle provided by the Customer; or
(iii)    Delivery of the Goods to the Customer.
(b)    Customer will, from the commencement of Delivery, bear all risk for the destruction, loss or damage of any Goods to be delivered to Customer under the Contract.  In respect of Goods to be returned to Colexon under the Contract, Customer will continue to bear the risk until the Goods are re-delivered to Colexon.
(c)    For the purposes of this clause 4, Delivery will occur at the time when the Goods leave the place at which they are stored or kept by Colexon and re-delivery will be completed at the time when the Goods are returned to the place to which Colexon requires them to be re-delivered.
(d)    Title to the Goods passes to the Customer only upon payment in full by the Customer of the Price for the Goods and any other amounts due by the Customer to Colexon.
(e)    Until payment for the Goods is made in full:
(i)    if the Goods are in the Customer’s possession, the Customer will hold the Goods as bailee for Colexon and must store the Goods so that they are clearly identifiable as the property of Colexon and Colexon may recover possession of the Goods at any time upon request;
(ii)    the Customer must at its own cost, deliver the Goods to Colexon if requested to do so by Colexon (irrespective of whether the Goods have been installed); and
(iii)    if the Customer does not comply with a request by Colexon to deliver the Goods to Colexon, then Colexon may (at the Customer’s expense) recover the Goods from the Customer’s property without liability for trespass, using such force as may reasonably be necessary.
For the avoidance of doubt, ownership of and title to any Goods supplied by Colexon to the Customer will not pass to the Customer until all indebtedness of the Customer to Colexon has been paid in full, including any interest accrued on overdue amounts payable by the Customer to Colexon.
(f)    The Customer will permit Colexon and its authorised agents, employees and contractors to enter the Location for the purposes of:
(i)    installing, inspecting or removing the Goods;
(ii)    repairing or maintaining the Goods (at the Customer’s request); or
(iii)    any other activities necessary to enable the removal of the Goods upon termination of this Contract.

5    TERMINATION
If any one or more of the following events occurs:
(a)    Customer commits or permits any breach of any of its obligations under these Conditions (including but not only its obligation to pay any money due to Colexon) and does not remedy the breach within 5 Business Days of the breach occurring, and whether or not Colexon has made a formal demand to Customer to remedy the breach;
(b)    Customer, being a natural person, becomes bankrupt; or
(c)    Customer, being a corporation, resolves or is ordered to be wound up, goes into liquidation (provisional or otherwise), enters into any scheme of arrangement or otherwise compounds with its creditors or is unable to pay its debts,
then Colexon has the right to do any of the following:
(d)    determine the Contract;
(e)    cease and withhold the provision of Goods to Customer under the Contract; and
(f)    retain any payments made by Customer under the Contract.
All of these remedies are in addition to any right or remedy that Colexon may have against Customer for recovery of any money due to Colexon or in respect of any previous breach by Customer of the Contract (including these Conditions).

6    CLAIMS IN RESPECT OF GOODS
(a)    Any claim made by a Customer (who is a reseller of the Goods) in respect of damaged Goods must be made by notice in writing to Colexon within 5 Business Days of the Delivery of some or all of the Goods the subject of the Contract.
(b)    Failure of the Customer to give notice of a claim in accordance with clause 6(a) will be deemed an absolute and unconditional waiver of such Claim.

7    CUSTOMER WARRANTIES
(a)    The Customer warrants that:
(i)    it has read and understood these Conditions;
(ii)    all information supplied by it to Colexon in connection with the supply of Goods is true and accurate and acknowledges that Colexon has relied on that information in supplying the Goods;
(iii)    the Infrastructure complies with all applicable Laws and is suitable for the installation and/or proper working order of the Goods;
(iv)    neither Colexon’s obligations under the Contract nor anything that Customer may require Colexon to do pursuant to the Contract:
(A)    will infringe the copyright of any person or render Colexon liable or expose Colexon to any action, suit, proceeding, claim or demand for infringement of copyright; or
(B)    will infringe the privacy of any person or render Colexon liable or expose Colexon to any action, suit, proceeding, claim or demand for breach of privacy; or
(C)    will be defamatory of any person or render Colexon liable or expose Colexon to any action, suit, proceeding, claim or demand under the laws of defamation; or
(D)    will render Colexon liable or expose Colexon to prosecution in respect of the production and distribution of any obscene article or thing; or
(E)    will render Colexon liable or expose Colexon to prosecution or other action under any Federal, State or Territory legislation or at common law.
(b)    The Customer acknowledges that:
(i)    Colexon has not made any representation or warranty concerning the performance of the Goods or the suitability of the Goods for the Location and the Infrastructure;
(ii)    it has not relied upon any representation or warranty concerning the performance of the Goods or the suitability of the Location and the Infrastructure; and
(iii)    if the Infrastructure is not compliant with all Laws, it may be required to repair or replace those parts of the Infrastructure that are non-compliant at its own cost prior to the installation of the Goods.
(c)    Customer indemnifies Colexon and holds Colexon harmless against all fines, penalties, damages, loss, costs or expenses (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Colexon in connection with any breach of the warranties of Customer under clause 7(a).
(d)    Without in any way limiting the liability of Customer under the indemnity given by Customer under clause 7(c), Colexon may at its sole discretion by itself or in conjunction with Customer defend, settle or compound any action, suit, proceeding, claim or demand brought or made against it by any person in connection with any breach of the warranties given by Customer to Colexon pursuant to clause 7(a) and Customer agrees that the indemnity extends to any cost or expense incurred by Colexon in conducting that defence or in settling or compounding the action, suit, proceeding, claim or demand.
(e)    Colexon reserves the right to refuse to do or to omit to do any thing, or to refuse to comply with any request or direction of Customer, which in the reasonable opinion of Colexon would constitute a breach of any warranty given by Customer under clause 7(a).

8    LIMITATION OF LIABILITY
(a)    Conditions and warranties expressed or implied by statute, the common law, equity, trade, custom, usage or otherwise are expressly excluded from the Contract to the extent permitted by law.
(b)    If any statute implies any term into a Contract, and that statute prohibits provisions in a contract excluding or modifying the application of, exercise of, or liability under, such a term, that term will be taken to be included in the Contract.  However, the liability of Colexon for any breach of such a term will be limited, if permitted by the statute, at the option of Colexon, to any one or more of the following:
(i)    if the breach relates to goods:
(A)    the replacement of the goods, the supply of equivalent goods or the repair of the goods;
(B)    the payment of the cost of replacing the goods or of acquiring equivalent goods or the cost of having the goods repaired; and
(ii)    if the breach relates to services:
(A)    the supplying of the services again; or
(B)    the payment of the cost of having the services supplied again.
(c)    Except as expressly otherwise provided in these Conditions, and to the extent permitted by law, Colexon will not be liable to Customer or Customer’s employees or agents for any direct, indirect, incidental or consequential damage or loss of any nature (whether based on tort, contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour costs and overhead expenses and damage to equipment or property or any other claim arising directly or indirectly or in any way attributable to the performance or non-performance of its obligations under the Contract (including these Conditions).
(d)    Colexon will not be responsible for any failure to supply Goods on the date agreed between the parties and the Customer is not entitled to cancel any Order as a result of that failure.
(e)    To the extent permitted by law, Colexon will not be liable for any personal injury, incidental damages, consequential losses, loss of profit, costs of business interruption, loss of opportunities or any like claims whatsoever arising from any use of, or incidental to, the Goods or their failure to operate, or arising out of Colexon's negligence or breach of the Contract.

9    INFORMATION AND PRIVACY
The Customer acknowledges and agrees that Colexon may exchange information about its credit standing and credit capacity with other credit providers.

10    INTELLECTUAL PROPERTY
(a)    Colexon is entitled to use all intellectual property rights (including, without limitation, copyright, trademarks, registered designs, patents and know how) in or in connection with or relating to the Goods. 
(b)    The Customer must not alter, remove or in any way tamper with any of the trade or other marks or numbers owned or controlled by Colexon.

11    GST
All amounts payable under a Contract are exclusive of GST. Colexon will invoice Customer for GST and will ensure that the invoice complies with the form of tax invoice required by the relevant GST legislation. Upon receipt of the tax invoice, Customer must pay to Colexon the amount of GST simultaneously with the corresponding payment set out in the tax invoice.

12    GENERAL
(a)    Waiver: A failure or delay by Colexon in insisting on strict performance by Customer of any provision of the Contract (including these Conditions) will not be taken to be a waiver of such provision or of any rights of Colexon under the Contract. In particular but without limiting the generality of this condition a waiver of a provision on one occasion will not be taken to be a waiver of the same provision on any subsequent occasion.
(b)    Assignment: The Contract is personal to Customer and may not be assigned or novated in any circumstances without the prior written consent of Colexon.
(c)    Notice: Any notice required to be given by Colexon to Customer pursuant to the Contract (including these Conditions) must be in writing and must be given by delivering or posting the notice to the address of Customer last known to Colexon. A notice will have been properly given, if delivered, on the day of delivery or, if posted, on the day that is 2 days after the day of posting to the address of Customer or, if sent by facsimile transmission, upon the sender’s facsimile machine recording that the facsimile has been transmitted to the recipient’s address.
(d)    Governing law: The Contract (of which these Conditions form part) will be governed by and construed in accordance with the laws of Victoria, Australia and Colexon and Customer hereby unreservedly submit to the jurisdiction of the courts of that state.


Status: April 7, 2010