BIOSAFETY PTY LTD

 

ACN 155 464 805

 

TERMS & CONDITIONS OF SALE

 

The following Terms and Conditions of Sale shall apply to the sale of goods or any ancillary dealing by Biosafety Pty Ltd (ACN 155 464 805) to another party. These Terms and Conditions of Sale replace any previous Terms and Conditions of Sale.

 

1.  DEFINITIONS

 

A.  “Biosafety” means Biosafety Pty Ltd (ACN 155 464 805).

B.  “customer” means a customer of Biosafety.

C.  “consequential loss of damage” means loss of profits, revenue, use or opportunity, freight costs and any other remote or

indirect form of damage of whatsoever nature howsoever arising.

D.  “goods” means all goods or services sold and/or delivered by Biosafety to a customer from time to time.

E.  “Terms”means these Terms and Conditions of Sale

 

2.  INTERPRETATION

 

A.  The headings used do not form part of these Terms and are for convenience only.

B.  Where the context admits or requires words importing the singular number shall include the plural number, those denoting a given gender shall include all other genders and those denoting natural persons shall include corporations.

 

3.  GENERAL

 

A.  Subject to 20B below, Biosafety may vary these Terms by notice in writing to the customer. The customer agrees that the purchase of any goods after the date of a notice of variation will be deemed to be an acceptance of such varied Terms.

B.  Should there be any variation to any of the information supplied by the customer to Biosafety or in the structure or nature of the customer’s business (such as a conversion to or from a company or trust) the customer shall forthwith notify Biosafety in writing.

C.  These Terms and all obligations shall be binding on the customer’s successors and permitted assigns and shall be for the benefit of Biosafety’s successors and assigns.

 

4.  PRICING

 

A.  Notwithstanding any prior acknowledgement by Biosafety of the price of goods, the prices specified for goods may at the option of Biosafety be subject to alteration to reflect Biosafety’s prices and charges in effect at the time of delivery.

B.  Any variations in the invoice or contract price as a consequence of currency fluctuations, taxes, customs duty or other imports shall be to the customer’s account.

C.  Biosafety will be entitled to set off against any money owing to the customer, amounts owed to Biosafety by the customer on any account whatsoever. All payments by the customer to Biosafety for goods must be made without deduction or set-off.

 

5.  ACCOUNT TERMS

 

A.  Subject to 5B below, if Biosafety grants credit facilities to the customer, the customer shall pay for all goods delivered in any calendar month on or before the last trading day in the following calendar month.

B.  Credit extended to the customer for all goods sold will be made in accordance with the terms of credit as agreed by Biosafety in writing at the time the customer’s account was established or as subsequently altered in writing by Biosafety and failing this these terms and conditions shall apply.

C.  If the customer does not pay Biosafety by the due date, the customer shall pay interest on moneys due, charged on a daily basis at two percent per annum above the National Australia Bank Limited base rate (as at the due date) from the due date for payment until actual date of payment. If the customer has an account with Biosafety, Biosafety may debit the customer’s account monthly or at such other time as it chooses with such interest.

D.  The customer shall pay all legal costs (on a full indemnity basis) which may arise from the enforcement of these terms by Biosafety in any Court of competent jurisdiction, together with any collection costs or dishonoured cheque fees.

E.  Biosafety may withdraw the customer’s credit facilities at any time or vary the customer’s credit limit without notice to the customer or any guarantor of the customer.

 

6.  DEFAULT

 

If:

A.  there is any default or failure by the customer in making due and punctual payment to Biosafety of any moneys owing by the customer;

B.  an administrator, liquidator or provisional liquidator is appointed in respect of the customer;

C.  a receiver, receiver and manager, administrator or  controller is appointed in respect of any assets orgroup of assets of the

customer;

D.  the customer goes into bankruptcy or is wound up;

E.  the customer becomes, admits in writing that it is,or is declared by a court to be unable to pay its debts as and when they fall

due; or

F.  there is a breach by the customer of any of these Terms.

then all moneys payable by the customer to Biosafety shall at Biosafety’s election become immediately due, owing and payable

notwithstanding the due date for payment shall not have expired, and;

G.  Biosafety may without prejudice to any other rights it may have do any or all of the following:

(i)  withdraw any credit facilities which may have been extended to the customer;

(ii)  withhold any further deliveries of goods;

(iii)  in respect of goods already delivered, enter onto the customer’s premises to recover and resell the goods for its own benefit; and

(iv)  recover from the customer any costs relating to therecover and resale of the goods.

 

7.  DELIVERY

 

A.  Goods will be delivered or deemed to be delivered when they are delivered to the delivery place nominated by the customer. If no such address is nominated then delivery will be deemed to occur at the time when notice is given to the Customer that the goods are ready for collection at Biosafety’s premises.

B.  The customer shall pay to Biosafety packing (other than Biosafety’s standard packing – if any), crating and delivery charges in accordance with the current rates charged by Biosafety as at the date of despatch. If there is no current rate then Biosafety may charge a reasonable amount to the customer. Biosafety reserves the right to charge a reasonable storage fee if delivery instructions are not provided by the customer within fourteen days of a request by Biosafety for such information.

C.  The customer authorises Biosafety to deliver the goods to the place nominated by the customer and to leave the goods at such place whether or not any person is present to accept delivery. Biosafety shall not be liable on any basis whatsoever for loss suffered by the customer after delivery to the nominated delivery address.

D.  Biosafety shall not be obliged to obtain a signed receipt or other acknowledgement from any person at the nominated place for delivery but if a signed receipt or other acknowledgement is obtained from someone believed by Biosafety (or its agent) to be authorised by the customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement shall be conclusive evidence of the customer’s acceptance of the goods delivered.

E.  Any times quoted for delivery are estimates only and Biosafety shall not be liable to the customer for any failure to delivery or for delay in delivery of goods occasioned by strike, lockout or other industrial dispute, shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility, civil commotion or any other cause whatsoever whether or not beyond the control of Biosafety.

F.  The customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.

G.  Biosafety reserves the right to deliver goods by instalments and each instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment or delivery instalment on time shall not entitle the customer to repudiate the contract in whole or in part.

 

8.  TITLE & RISK

 

A.  The goods shall be at the sole risk of the customer as soon as they are delivered or deemed to be delivered.

B.  Property in and title to the goods will not pass to the customer until those goods and all other amounts owed to Biosafety by the customer have been paid in full in cash and until then:

(i)  the customer holds the goods as fiduciary and bailee for Biosafety;

(ii)  the goods must be stored separately and in a manner enabling them to be identified as goods of Biosafety and cross referenced to particular invoices;

(iii)  the customer may not sell the goods in the ordinary course of its business without the prior written consent of Biosafety. If the customer transfers possession of the goods to a third party, it hereby undertakes to notify such third party of Biosafety property and title in and to the goods. The customer hereby authorises Biosafety to give notice of its property and title in and to the goods to any third party;

(iv)  with the prior written consent of Biosafety, the customer may sell the goods in the ordinary course of its business as bailee for Biosafety and undertakes and agrees to hold the proceeds of sale in a separate account on trust for Biosafety and show account to Biosafety for those proceeds; and

(v)  Biosafety may require the customer to return the goods to it on demand and may enter upon the premises of the customer to inspect or repossess the goods.

C.  The customer shall insure the goods against theft or any damage until such goods have been paid for or until they are sold by the customer whichever occurs first and Biosafetywill be entitled to call for details of the insurance policy. If the customer does not insure the goods or fails to supply details of its insurance policy, the customer will reimburse Biosafety for the cost of any insurance which Biosafety may reasonably arrange in respect of the goods supplied to the customer.

D.  The customer agrees irrevocably that all provisions of this clause 8 apply notwithstanding any arrangement between the Parties under which Biosafety grants the customer credit.

E.  Notwithstanding delivery or freight arrangements, risk (including deterioration, loss or damage) passes to the customer preloading at the Company’s premises or at an address specified by the customer or if shipped directly from the manufacturers preloading at the manufacturers premises or if shipped directly from outside Australia preloading at the port of entry in Australia. The customer is responsible for all insurance of the goods.

F. Title passes to the customer when the Company has been paid in full for all goods supplied by it tothe customer.

G. Until the customer has paid all monies owed to the Company.

(i) the Company retains a purchase money security interest in the goods and the proceeds of the sale of the goods under the Personal Property Securities Agreement act 2009 (PPSA);

(ii) the customer consents to the Company registering a Securities interest in under the PPSA and agrees to do all things reasonably required by the Company to effect such registration.

(iii) the customer waives any right the customer has under the PPSA to receive notice in relation to registration of the Company’s interest in the goods under the PPSA.

(iv) the customer will immediately advise the Company of any changes which may affect the Company’s security interest.

 

9.  RETURN OF GOODS

 

A.  Subject to clause 10 unless agreed in writing by Biosafety, Biosafety will not accept the return of goods. Goods accepted for return by Biosafety may attract a charge. The amount of this charge will be determined by Biosafety. Such charges shall be deducted from the amount of credit allowed.

B.  The original invoice number must accompany all goods returned to Biosafety.

 

10.  CLAIMS UPON BIOSAFETY

 

A.  It is the responsibility of the customer to inspect the goods and satisfy itself as to the condition, quality, suitability and fitness of the goods for the purpose prior to the use or resale of the said goods. If the customer fails to inspect the goods in connection with the requirements specified in this clause, it shall have forfeited any right of compensation of any kind and must pay the full purchase price of the goods to Biosafety.

B.  Subject to clause 7D, all claims for Biosafety’s failure to comply with the customer’s order whetherdue to shortfall, defect, incorrect delivery or otherwise must be made by giving written notice to Biosafety within seven daysfrom the date of delivery. If the customer fails to provide such notice then the customer shall be deemed to have accepted the goods.

C.  These conditions shall not exclude, or limit the application of any provision or any statute including any implied condition or warranty the exclusion of which would contravene any statute (including the Trade Practices Act 1974 () and the Fair Trading Act 1999 (Vic)) or cause any part of this clause to be void, and notwithstanding anything else in these Conditions of Sale, the customer will have the benefit of any liability of Biosafety arising under any Act of parliament to compensate or indemnify the customer to the extent to which the liability is prohibited by the Act from being excluded, restricted or modified.

D.  To the full extent permitted by law all statutory and implied conditions, warranties and undertakings, except as to title are expressly excluded.

E.  Biosafety’s liability under clause’s 10A, 10B and 10C for breach of a non-excludable condition or warranty is limited at Biosafety’s option, to any one of the following:

(i)  the replacement of the goods or the supply of equivalent goods;

(ii)  the repair of the goods;

(iii)  the payment of the cost of providing replacement goods or of acquiring equivalent goods; or

(iv)  the payment of the cost of having the goods repaired.

F.  To the full extent permitted by law Biosafety shall be under no liability whatsoever for any defects (including any defect caused by the transportation of the goods) in, or deterioration or failure of, the goods or any part thereof (or any goods supplied with the goods or any part thereof) whether due to  design, workmanship or materials or to any cause whatsoever unless the same is due to the negligence of wilful default of  Biosafety or its employees or agents. Biosafety shall be under no

liability whatsoever for any failure of the goods: and

G.  Subject to clause 10E Biosafety shall not be liable for any direct or indirect loss whatsoever, including consequential loss or damage.

 

11.  FITNESS FOR PURPOSE

 

The customer unconditionally and irrevocably agreesthat it does not rely on the skill or judgement of Biosafety in relation to the suitability of any goods for a particular purpose.  Any advice, recommendation, information or assistance provided Biosafety is provided without any liability to Biosafety whatsoever.

 

12.  INDEMNITY

 

The customer shall comply with all instructions of  Biosafety (if any) in relation to the handling and use of the goods and, notwithstanding such compliance, the customer shall keep Biosafety indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss or damage, which may be made against Biosafety or which Biosafety may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the goods unless such cost, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract by, or negligence of, Biosafety or a duly

authorised employee or agent of Biosafety.

 

13.  GST

 

A.  In this clause the expression “GST”, “Input Tax Credit”, “Tax Invoice”, “Recipient” and “Taxable Supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.

B.  With the exception of any amount payable under this clause, unless otherwise expressly stated all amounts stated to be payable by the customer under these Terms and Conditions are exclusive of GST.

C.  If GST is imposed on any supply made under or in accordance with these Terms and Conditions, the recipient of the taxable supply must pay to Biosafety any additional amount equal to the GST payable on or before the taxable supply. Payment of the additional amount will be made at the same timeas payment for the taxable supply is required to be made in accordance with these Terms and Conditions, subject to the provision of a tax invoice.

 

14.  TRUST & TRUSTEES

 

Where the customer is a Trustee:

A.  The customer agrees to produce a copy of the Trust Deed (with all amendments) if and when requested by Biosafety.

B.  The customer warrants that it has full power and authority to enter into this agreement on behalf of the Trust and that it shall be bound by these Terms and Conditions both personally and as a Trustee, irrespective of whether or not it discloses to Biosafety that it is a Trustee at the time of entering into any credit agreement with Biosafety.

 

15.  CATALOGUES & TECHNICAL DOCUMENTS

 

A.  Particulars in leaflets, catalogues, drawings, brochures and other printed material other than quotations, pursuant to which Biosafety supplies the goods, are illustrations only, form no part of the contract between Biosafety and the customer, and are not binding on Biosafety.

B.  All technical documents such as drawings, illustrations, descriptions, quotations, pricing documents/calculations etc are the exclusive property of Biosafety. They must not be made available to third parties, or copied, duplicated or used to reproduce any part of the goods.

 

16.  LAWS TO GOVERN PROVISIONS OF AGREEMENT

 

A.  Unless varied by notice in writing by Biosafety,  these Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria, Australia.

B.  The parties submit to the exclusive jurisdiction of the courts in Victoria, Australia.

 

17.  NOTICE

 

A.  Notice to be given by the customer to Biosafety may be delivered personally or sent to the Managing  Director of Biosafety at Biosafety’s address as follows:

Biosafety Pty Ltd

Unit 15, 69 Acacia Road

Ferntree Gully Victoria 3156

and unless the contrary is proven shall be taken as delivered when received by Biosafety.

B.  Notice to be given to the customer by Biosafety may be delivered personally or sent to the customer’s last known address and unless the contrary is proven shall be taken as delivered on the second business day following posting.

 

18.  INTELLECTUAL PROPERTY RIGHTS

 

The customer shall not alter, remove or in any way tamper with any of the Trade or other Marks or numbers attached to or placed upon the goods.

 

19.  LICENSES & CONSENTS

 

The obtaining and maintenance in full force and effect of any necessary export or import licenses, authorisations or consents in respect of the goods is the sole responsibility of the customer and Biosafety shall be under no liability whatsoever in respect of goods exported or imported without any necessary licenses, authorisations or consents.

 

20.  FURTHER GENERAL

 

A.  Waiver– the non-exercise of or delay in exercising any power or right by Biosafety does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by a duly authorised representative of the party to be bound by the waiver.

B.  Entire Agreement– these Terms read with the Biosafety quotation (if any) and the Customers purchase order (if any) comprise the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in these Terms read with the Biosafety quotation (if any) and the Customers purchase order (if any). All representations, communications and prior arrangements in relation to the subject matter are merged in and superseded by these Terms. No amendment, addition, or deletion to these Terms (including to this clause) shall be binding unless reduced to writing and signed by an executive Director of Biosafety.

C.  Severability– any provision of these Terms which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without effecting the validity or enforceability of that provision in any other jurisdiction.

D.  Assignment– the customer may not assign or transfer any of its rights or obligations under these Terms without the prior consent in writing of Biosafety.

E.  No Merger– no provision of these Terms merges on or by virtue of completion.

F.  Supersedes prior agreements –these Terms supersedes any prior agreement between the parties whether written or oral.

G.  Notices  – any notice to be served on any of the parties by the others shall be sent by prepaid, recorded, delivery or registered post or by telex or by electronic mail or by fax and shall be deemed to have been received by the addressee within 48 hours of posting or within 24 hours if sent to telex or by electronic mail or by fax to the correct telex number (with correct answerback) or correct electronic mail number or the correct fax number of the addressee. Invoices and statements are deemed received by the customer on the second business day after posting by ordinary pre-paid post.

H.  Conflict between conditions –In the case of a conflict between the conditions in the Terms and the conditions in a Biosafety quotation, the Terms will be given priority.

 

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