SUPPLY TERMS AND CONDITIONS OF TRADE
Set out hereunder are the standard terms and conditions under which goods are sold by Tempo (Goods). These terms and conditions are effective from 1 July 2011.
For the purpose of this terms and conditions of trade, Buyer is the person or entity named on the account with Tempo, or if no account exists, Buyer means the person or entity which the Tempo Goods are sold to.
In respect of all sales of Goods the Buyer is deemed to purchase and accept delivery of goods upon the following terms and conditions:
1. Application
Prior to placing any order with Tempo, the Buyer acknowledges and agrees that it has read and agreed to the terms and conditions as set out in this terms and conditions of trade.
2. Legislation
Nothing herein will exclude, restrict or modify any condition, warranty, right or liability expressed or implied either by the Competition and Consumer Act 2010 (Cth) or by any other Australian or State legislation relating to the sale of goods or consumer affairs where to do so would render any part of these conditions void or of no effect.
3. Entire Agreement
4. Property in goods
(a) Notwithstanding that risk and possession of the goods pass upon acceptance of their delivery to the Buyer, property in the Goods shall not pass to the Buyer, and Tempo retains the right to assert ownership and reserves the right to take possession and dispose of the Goods as it sees fit, until such time as payment in full for Goods has been received by Tempo and no other money is owing by the Buyer to Tempo on any account whatsoever and whether or not such other money has become due for payment. Until such time:
(i) the Buyer shall possess all Goods supplied by Tempo on as a fiduciary for Tempo only and shall keep
the Goods separate from other goods in the possession of the Buyer and store them so that they
are identified as belonging to Tempo;
(ii) the Buyer agrees that Tempo has a security interest in the Goods within the meaning of the Personal
Property Securities Act 2009 (Cth).
(iii) Sale of the Goods to a third party for further resale is not permitted unless the Buyer and Tempo have
entered into a distribution agreement on terms and conditions acceptable to Tempo.
(iv) Tempo has the right to any claims for payment the Buyer may have against a purchaser from the Buyer
and any payment received by the Buyer from any such purchaser will be held on trust for Tempo and may
be traced. The Buyer must, upon request from Tempo, account to Tempo in respect of any proceeds
received by the Buyer and must direct any purchaser from the Buyer to pay any proceeds to Tempo.
(v) Tempo may at any time recover the Goods if they are in the possession of the Buyer, and resell them, and
for the purpose of recovering them, Tempo and its employees or agents may enter upon the premises on
which the Goods are located. The Buyer grants Tempo the permission and right to enter into any property
to recover the Goods with such force as is necessary.
(vi) Should Tempo or its employees or agents enter upon premises on which Goods are located as provided
in paragraph (v), and if any person should bring any legal action against Tempo relating to such entry, the
Buyer shall indemnify Tempo and keep it indemnified against all loss, damages, costs or expenses which
Tempo may incur directly or indirectly as a result of such action.
5. Order
(a) The Buyer must submit orders to Tempo in writing either by email or facsimile transmission, or such other means as agreed by the parties from
time to time.
(b) The order must specify:
(i) the quality of each type of Goods the Buyer requires;
(ii) delivery instructions, including the desired date of delivery of the Goods; and
(c) The prices for each type of Goods and the total price for the order.
6. Delivery and Risk
(a) It is the Buyer's responsibility to ensure that the Goods ordered conform to its requirements.
(b) The Buyer agrees that Tempo accepts no responsibility or duty for delivery. Tempo reserves the right to charge for the Buyer for delivery.
(c) Where delivery is required by the Buyer, the method of delivery will be agreed by the parties and where there is no such agreement Goods will be delivered to the premises of the Buyer in accordance with the Free into Store (FIS) terms of the Incoterms 2000.
(d) If the Buyer requests Tempo to deliver Goods to a place other than the Buyer's premises, then Tempo will subject to these conditions, deliver the Goods as directed provided that the Goods shall be delivered Ex-Warehouse. Tempo will be entitled to charge the Buyer and the Buyer must pay upon demand any freight or delivery charges for these Goods.
(e) Any time or date or month stated by Tempo for anticipated or promised delivery of the Goods is a bona fide estimate only. If Tempo is delayed by any circumstances or event beyond its control then it may suspend delivery or extend the delivery time in respect of the whole or part of the Goods and it shall not be liable to the Buyer for any consequential loss or damage arising from any such delay.
(f) Any agreement or undertaking by Tempo is contingent upon its ability to secure or supply the Goods.
(g) Delivery may be made in one or more lots. Each lot shall form a separate contract on delivery and be accepted and paid for accordingly notwithstanding late delivery or non-delivery of any other lot. Upon failure by the Buyer to pay any amount when due Tempo may at its option terminate the contract as to further delivery and no forbearance or course of dealing shall affect this right of Tempo.
(h) The Buyer accepts full risk of loss or damage to the Goods from the time:
(i) where no delivery is required, when Tempo notifies the Buyer that Goods are ready for the buyer’s collection; or
(ii) where delivery is required, upon Tempo delivering any Goods to a carrier; or
(iii) where delivery is required and a term of carriage of the Incoterms 2000 is agreed to be the method delivery by the parties, in accordance with that term of the Incoterm 2000. (i) Tempo shall have the right to accept any order for the supply of Goods in whole or in part or to decline any order. Where delivery is made by Tempo in respect of part only of any order then these terms and conditions shall apply to the Goods actually delivered.
(j) Where risk passes to the buyer in accordance with sub-clause (h), the Buyer is responsible to pay for all holding costs and costs incurred by Tempo for holding those Goods for the Buyer.
7. Terms of Payment
(a) The Buyer must pay Tempo:
(i) within 30 days from the date of any invoice issued by Tempo for an order or orders; and
(ii) for the full amount without deduction and setoff.
(b) Any discounts, rebates, trade allowances, stock price reduction, or any reduction in the prices is offered at the complete discretion of Tempo and is only available to the Buyer if the Buyer is not in breach of any part of the terms and conditions or trade and is not in default under this agreement.
8. Prices
(a) Prices are subject to change without notice. All prices are based on the full quantities specified and do not necessarily operate pro rata for any greater or lesser quantities.
(b) Goods and Services Tax (GST) will be charged at the appropriate rate ruling at the time of invoice.
(c) Prices are inclusive of all imposts charges and duties currently applicable. In the event that Tempo is required to pay any further amounts as a result of any increases thereof then the Buyer shall be required to pay Tempo any such further amount as may be invoiced to the Buyer.
9. Rebates and Trade Allowances
Rebates and trade allowances granted by Tempo to the Buyer ____% on total purchases in accordance with the current pricing policy) from time to time may reduce the sale price of goods to the Buyer who shall comply with the applicable current conditions for payment and settlement. Where the Buyer is a member of any buying group, any such rebates and allowances granted to the group may be paid or credited by Tempo to such group on the understanding that the group will be responsible for payment on to its members as they may be entitled.
10. Stock Price Reduction
In the event of a Tempo Stock price Reduction, a Buyer with stock on hand to which the reduction applies, and which has been purchased within ninety (90) days prior to the price reduction date, is entitled to apply to Tempo within thirty (30) days with appropriate substantiation, for appropriate credit or payment. Tempo reserves the right to have access to the stock on hand of the Buyer in order to conduct such verification and stocktake as it may determine.
11. Interest
Tempo shall be entitled to charge interest on overdue accounts calculated from the day following the date upon which payment should have been made at the per annum rate of 2% above the National Australia Bank Base Overdraft Rate as published from time to time.
12. Warranty
(a) Subject to the conditions hereof and to the full extent allowed by law, the only warranties in respect of the goods shall be those expressly stated by Tempo. Tempo expressly excludes all other warranties, conditions or representations in whatever form, whether express or implied, relating to the Goods, including without limitation any warranties or representations relating to performance, quality, acceptability, or fitness for use, or any representation that the Goods will be free from defects.
(b) The Buyer, its employees or agents shall not make any statement, representation, undertaking or warranty concerning the quality or description of the Goods other than those either contained in literature published by Tempo or expressed or implied by law.
(c) The acceptance of any of the Goods by the Buyer shall imply a condition that the Buyer indemnifies Tempo and will keep it indemnified against loss, claim or damage suffered by reason or arising out of:
(i) any statement, representation, undertaking or warranty made by or on behalf of the Buyer, which is not expressly authorised by Tempo.
(ii) any loss or damage caused to the Goods after risk therein has passed to Buyer.
(d) Tempo does not warrant or make any representations regarding the use or the results of the use of the Goods in terms of their suitability and intended use, reliability or otherwise other than set out in its written warranties provided.
13. Intellectual Property Rights
(a) Sale of the Goods shall not confer upon the Buyer any rights or interest in any trademarks, patents, copyrights, industrial designs or other intellectual property rights of Tempo, or any related entity, in respect thereof (Intellectual Property), notwithstanding any contribution by the Buyer thereto (if any).
(b) The Buyer must not dispute or conspire to dispute or question the title of Tempo, or any related entity, in respect of any Intellectual Property rights relating to Goods.
(c) The Buyer must not use any trademark or trade name used or registered by Tempo, or any related entity, except as authorised in writing by Tempo.
(d) The Buyer must not make any representations to any person that it has any proprietary rights in the Intellectual Property.
(c) The Buyer acknowledges that Tempo may suffer from third party claims as a result of or subsequent to the Buyer’s breach of any part of this clause. The Buyer must keep Tempo indemnified in accordance with clause 18.
14. Limitation of Liability
(a) Notwithstanding any other provisions of this terms and conditions of trade and to the fullest extent permitted by law, Tempo’s maximum liability:
(i) for a breach of any implied warranties which cannot be excluded by law is limited to, in the case of the Goods, at Tempo’s option, replacement of goods or the supply of equivalent goods, or the repair of such goods, or payment for replacement or repair; and
(ii) under this terms and conditions of trade for all cumulative loss incurred by the Buyer will be limited, to the maximum extent permitted by law, to the aggregate amount of Goods purchased by the Buyer in the six months period preceding the act or omission causing the loss.
(b) Notwithstanding any other provisions of these terms and conditions of trade and to the fullest extent permitted by law, neither party will be liable for any consequential, indirect or special losses or damages of any kind (including, without limitation, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by the other party or any third party.
15. Default
(a) Upon the happening of any of the following events:
(i) the commission by the Buyer of any act of bankruptcy or the Buyer going into liquidation or a petition being presented for the sequestration of the Buyer's estate or for the winding up of the Buyer; or
(ii) the Buyer assigning its property for the benefit of creditors or having a receiver or official manager appointed; or
(iii) the Buyer failing to make any payment to Tempo by the due date; or
(iv) the Buyer being in breach of terms of or obligations under these terms and conditions of trade,
then in any such event Tempo shall have the right to:
(i) decline to deliver the Goods or any balance of the goods still due under this contract; and/or
(ii) stop any Goods in transit; and/or
(iii) otherwise cease to perform any of its obligations to the Buyer; and/or
(iv) terminate any agreement without incurring any liability at law or in equity and without prejudice to its rights to recover amounts owing to it by the Buyer and/or damages; and/or
(v) recover from the Buyer on demand the contract price of all Goods transported and for freight, insurance, handling, storage and other expenses incurred by Tempo ;and/or
(vi) with or without taking possession, to sell the Goods by public auction or private sale in any manner, whether for cash or on terms, and generally as Tempo shall consider appropriate, and to apply the proceeds after deduction of expenses and enforcement in or towards reduction of all moneys due and owing by the Buyer to Tempo.
(b) Should Tempo by its servants or agents enter upon any premises where goods are situated for the purpose of repossessing such goods in accordance with its rights herein and any person bring an action for trespass or any other action against Tempo based upon such entry or anything done during or in connection with such entry, the Buyer shall indemnify and keep indemnified Tempo for all damages for which Tempo may be responsible as a result of such action.
16. Returns for Credit
In respect of the return of goods for credit the current Tempo’s procedures as to return of goods will apply subject to the provisions of any consumer or trade practices law and provided the buyer has first obtained from Tempo a Returned Goods Authority (RGA) number.
17. COCOM
(a) The Buyer shall not export the goods outside Australia except with the written approval from Tempo.
(b) Where the Buyer is approved by Tempo to export Goods outside Australia, the Buyer must confirm with any applicable controls imposed by the Australian Government under the Customs Act 1901 (Cth)_as amended from time to time in relation to dual use technology pursuant to membership of the Co-ordinating Committee for Multi-lateral Export Controls. The Buyer shall procure all such licences, permits or authorisations as may be required and shall indemnify Tempo against all claims, expenses, costs and other losses directly or indirectly arising from any breach of this condition.
18. Indemnity
The Buyer agrees to indemnify and will keep Tempo, its directors, officers, employees and agents against all claims and liability (whether actual or contingent or perspective), loss, damage, debt, cost or expense (including legal costs and expenses) of whatever nature or description, incurred or suffered by Tempo arising from or in any way connected with:
(i) any breach of a term of or obligation under this terms and conditions of trade (including warranties) by the Buyer;
(ii) its own negligence, fraud or willful misconduct, or of any other person for which the Buyer is vicariously liable; or
(iii) the use by the Buyer of the Intellectual Property other than in accordance with these terms and conditions of trade,
provided that the Buyer will not be liable under this clause to the extent to which the claims or liabilities arise from the error, ommisison, negligence, fraud or willful misconduct of Tempo.
19. Restructure or Change in Underlying Ownership
The Buyer must notify Tempo within 14 days of any change in its structure or management, including but not limited to any change in director, officer, shareholder, partnership, or trusteeship.
20. Waiver, Cancellation, Alteration or Assignment
No purported waiver, alteration, cancellation or assignment of these conditions shall be binding on Tempo unless assented to in writing by a duly authorised officer of Tempo.
21. Force Majeure
No party shall be in default for a breach of this terms and conditions as a result of force majeure (anything beyond the reasonable control of the parties, and includes and strike or lock out).
22. Notices
(a) Any notice to the Buyer shall be sufficiently delivered if:
(i) mailed in the ordinary course of post to the last known Buyer's address in the appropriate State or Territory of Australia. All notices to Tempo shall be sufficiently delivered if so mailed to its principal office in the relevant State or Territory. Any such notice shall be deemed to have been delivered three (3) days after mailing.;
(ii) sent by email, when the sender’s email system generates a confirmation of receipt of the notice;
(iii) sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire notice.
23. Governing Law and Jurisdiction
This agreement shall be governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.