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Terms & Conditions Of Trade

SCHEDULE 1 – TERMS AND CONDITIONS

1.    DEFINITIONS AND INTERPRETATION


1.1. Definitions


In this Agreement:
Business Day means a day that is not a Saturday, Sunday or public holiday in Sydney, NSW.
Credit Application means the Supplier’s credit application form.
Credit Customer means a Customer that has signed a Credit Application.
Customer means the person or entity specified in the Credit Application or Pro Forma Agreement as the customer and includes the Customer’s agents and permitted assigns.
Goods means any goods supplied by the Supplier. Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means an order for Goods placed by a Customer and as varied in writing from time to time by the parties.
Pro Forma Agreement means the Supplier’s pro forma agreement form.
PPS Law and PPSA means the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time) and any amendment made at any time to any other legislation as a consequence of a PPS Law.
Proceeds has the same meaning under the PPS Law.
Security Interest means any security interest defined by the PPS Law and created by this Agreement.
Supplier means Johnco Productions Pty Limited ACN 620 322 009 as trustee for the Johnco Productions Unit Trust ABN 74 347 649 803 and includes the Supplier’s agents and permitted assigns.


1.2. Interpretation

In this Agreement, unless the context otherwise requires:

(a) a reference to writing includes email and other communication established through the Supplier’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause is a reference to a clause of this Agreement;
(d) a reference to a party to this Agreement or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of this Agreement; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:

(1) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(2) in all other cases, must be done on the next Business Day.


2.    GENERAL


2.1. Application of this Agreement

(a) This Agreement applies to all transactions between the Customer and the Supplier relating to the provision of Goods, including all contracts and variations. This Agreement takes precedence over any terms contained in any document of the Customer or elsewhere.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless agreed to by the parties. The Customer agrees that such agreement may be provided by the Customer by continuing to order from the Supplier after receiving written notification from the Supplier of any variation or waiver of a provision of these terms.
(c) This Agreement should be read in conjunction with the Terms of Service (available here). To the extent that there is any inconsistency between the Terms of Service and the terms of this Agreement, then the terms of this Agreement shall prevail.


3.    ORDERS


(a) The minimum order value is $250.00 plus GST, unless the Supplier indicates otherwise in writing. We may, in our sole discretion, limit or cancel quantities or value of goods purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address.
(b) Placement of an Order by the Customer signifies acceptance by the Customer of this Agreement. The parties agree that any terms and conditions that the Customer attempts to introduce to this agreement on any Order, other than the number and type of Goods ordered, do not bind the parties.
(c) The Supplier may in its absolute discretion refuse to provide Goods where:

(1) Goods are unavailable for any reason whatsoever;
(2) credit limits cannot be agreed upon or have been exceeded; or
(3) payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.

(d) An Order cannot be cancelled by the Customer without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled. This clause shall not merge on completion.


4.    VARIATIONS


The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.


5.    PAYMENT


(a) The Customer must pay an invoice issued by the Supplier:

(1) If the Customer is a Credit Customer, within 30 days after the end of the month in which the invoice was issued; or
(2) Otherwise prior to the dispatch of the Goods.

(b) If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
(c) The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
(d) The Customer is not entitled to retain any money owing to the Supplier despite any default or alleged default by the Supplier of this Agreement, including (but not limited to) the supply of allegedly faulty or defective Goods, or a delay in the provision of Goods. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
(e) The Customer is to pay the Supplier on demand interest at the rate of 2% per month on all overdue amounts owed by the Customer to the Supplier, calculated daily, or $5.00 per month or part thereof, whichever is the greater.
(f) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees (on a solicitor-client basis) and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under this Agreement


6.    ACCEPTANCE OF GOODS


The Customer is deemed to have accepted the Goods unless it gives the Supplier written notice advising the Supplier of any fault in the Goods or the failure of Goods to accord with the Customer’s Order, and including the invoice number in respect of the relevant Goods, a description of the alleged fault, and be provided to us within 14 days of delivery (Dispute Notice).

The Dispute Notice will not be validly provided to the Supplier if it does not contain the invoice number of the respective Goods. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.


7.    TITLE AND RISK


(a) Risk in Goods passes to the Customer immediately upon dispatch from the Supplier. Insurance is available on request for an additional charge, but must be requested by the Customer at the time of the Order.
(b) Property in Goods supplied to the Customer pursuant to this Agreement does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
(c) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods provided by the Supplier in respect of those Goods, the Customer:

(1) is a bailee of the Goods until property in them passes to the Customer;
(2) irrevocably appoints the Supplier its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
(3) must be able upon demand by the Supplier to separate and identify as belonging to the Supplier Goods supplied by the Supplier from other goods which are held by the Customer;
(4) must not allow any person to have or acquire any security interest in the Goods;
(5) agrees that the Supplier may repossess the Goods if payment is not made in accordance with this Agreement (or such longer time as the Supplier may, in its complete discretion, approve in writing); and
(6) the Customer grants an irrevocable licence to the Supplier or its agent to enter the location where the Goods are kept in order to recover possession of Goods pursuant to this clause. The Customer indemnifies the Supplier in respect of any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises. This clause shall not merge on completion.

(d) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods provided by the Supplier, and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other goods or the Goods become part of other goods (New Goods), the Customer agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under this Agreement or any other contract have been made and the Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.
(e) For the avoidance of doubt, under 7(d), the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
(f) Despite clause 7(c) the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business provided that:

(1) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for the Supplier – in a separate account – until all amounts owned by the Customer to the Supplier have been paid; or
(2) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.

(g) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.
(h) If Chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, the Customer agree the following provisions of the PPSA will not apply to the enforcement of that Security Interest:

(1) section 95 (notice of removal of accession), to the extent that it requires the Supplier to give the Customer a notice;
(2) section 96 (when a person with an interest in the whole may retain accession);
(3) subsection 121(4) (enforcement of liquid assets – notice to grantor);
(4) section 125 (obligation to dispose of or retain collateral);
(5) section 130 (notice of disposal), to the extent that it requires the Supplier to give the Customer a notice;
(6) paragraph 132(3)(d) (contents of statement of account after disposal);
(7) subsection 132(4) (statement of account if no disposal);
(8) section 142 (redemption of collateral);
(9) section 143 (reinstatement of security agreement).

(i) The Customer consents to the Supplier effecting a registration on the PPSR (in any manner we consider appropriate) in relation to any Security Interest arising under or in connection with this Agreement and the Customer agrees to provide all assistance reasonably required by the Supplier to facilitate this.

(j) The Customer waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

(k) The Customer acknowledges that if the Supplier’s interest under this Agreement is a Security Interest for the purposes of the PPSA, then the Security Interest relates to Goods supplied and all Proceeds of any kind, and this Agreement is a security agreement for the purposes of the PPSA.


8.    AGENCY AND ASSIGNMENT


(a) The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to this Agreement.
(b) The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this Agreement provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under this Agreement.
(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under this Agreement without the prior written consent of the Supplier.


9.    DEFAULT BY CUSTOMER


(a) Each of the following occurrences constitutes an event of default:

(1) the Customer breaches or is alleged to have breached a term of this Agreement for any reason (including, but not limited to, defaulting on any payment due) and fails to remedy that breach within 7 days of being given notice by the Supplier to do so;
(2) the Customer, being a natural person, commits an act of bankruptcy;
(3) the Customer, being a corporation, is subject to:

(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring);
(D) any assignment for the benefit of creditors;

(4) the Customer purports to assign its rights under this Agreement without the Supplier’s prior written consent;
(5) the Customer ceases or threatens to cease conduct of its business in the normal manner.

(b) Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:

(1) terminate this Agreement;
(2) terminate any or all Orders and credit arrangements (if any) with the Customer;
(3) refuse to deliver Goods;
(4) pursuant to clause 7(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(5) retain (where applicable) all money paid on account of Goods or otherwise.

(c) In addition to any action permitted to be taken by the Supplier under clause 9(b), on the occurrence of an event of default all invoices will become immediately due and payable.


10.    EXCLUSIONS AND LIMITATION OF LIABILITY


(a) The Customer expressly agrees that use of the Goods is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into this Agreement by any law is excluded.
(b) All information, specifications and samples provided by the Supplier in relation to the Goods are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
(c) Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
(d) To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on this Agreement, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
(e) The Customer acknowledges that the Goods are not for personal, domestic or household purposes.
(f) The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.


11.    INDEMNITY


(a) The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods, any Order or the subject matter of this Agreement including, but not limited to any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal casts for Which the Supplier is liable in connection with any such claim or demand. This provision remains in force after the termination of this Agreement.
(b) The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any Loss the Supplier incurs arising from the Customer’s breach of this Agreement, including but not limited to an event of default under clause 9(a).


12.    FORCE MAJEURE


(a) If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this Agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.


13.    CAVEATABLE INTEREST


(a) The Customer hereby charges all their right, title and interest (if any) to any or all real property now owned or partly owned, or in the future may become owned, solely or jointly by the Customer (Secured Property), to better secure the monies outstanding, with the due and punctual observance and performance of all the obligations of the Customer under this Agreement. The Customer acknowledges that the Supplier may at its discretion register a caveat on the Secured Property in respect of the interest conferred on it under this clause.
(b) The Customer grants to the Supplier the right to appoint a receiver and sell the Secured Property in the event the Customer commits an event of default.


14.    OTHER MATTERS


(a) This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
(b) This Agreement and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
(c) This Agreement supersedes all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into this Agreement, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of this Agreement.
(e) If any provision of this Agreement at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown in the Pro Forma Agreement or Credit Application (or as varied pursuant to this clause) and delivered personally; sent by pre-paid mail; sent by facsimile transmission to the facsimile number of the addressee, with acknowledgment of receipt from the facsimile machine of the addressee; or sent by e-mail to the e-mail address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or e-mail before 4.00 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) The parties may only change their postal, email address or fax number for service by giving notice of that change in writing to the other party.