Terms of Use

The following Trading Terms supersede all previously issued trading terms of ORTHOLOGY Pty Ltd.

INTERPRETATION

The following terms in clauses 10 and 11 of these Trading Terms have the respective meaning given to them in the PPS Act: “accession”, “commingled”, “financing statement”, “financing change statement”, “perfected”, “Personal Property Securities Register”, “security agreement”, “security interest” and “verification statement”. Otherwise, in this document and on any quotation, offer, price list or other agreement, the following definitions apply: “Company” means ORTHOLOGY Pty Ltd, its servants or agents. “Goods” shall mean the goods sold and described in an Offer. “GST” means the goods and services tax that applies in accordance with A New Tax System (Goods & Services) Act 1999 (Cth). “Offer” means an offer made by the Company to sell Goods to the Purchaser according to the prices and other conditions set out in a Company issued quotation, offer, current catalogue, website offering or price list. “Order” means the Purchaser’s order for Goods, pursuant to the Purchaser’s acceptance of a quotation, Offer or price list. “PMSI” means a Purchase Money Security Interest under the PPS Act. “PPS Act” means the Personal Property Securities Act 2009 (Cth). “Purchaser” means the person, persons, firm or company to whom the quotation is addressed or the Offer is made and their legal representatives, administrators, successors and permitted assigns.

GENERAL

Subject to any special conditions agreed to between the Company and the Purchaser and recorded in the Customer and Credit Application, these Trading Terms together with a designated quotation, Offer or price list from the Company shall comprise in entirety the trading terms entered into between the Company and the Purchaser. Any contractual trading terms of the Purchaser are expressly excluded.

CONTRACT

The Company’s quotation or Offer is valid for a period of thirty days from the date of the quotation or Offer, or otherwise agreed in writing. The Company’s quotation or Offer is subject to review, amendment or withdrawal by the Company at any time prior to acceptance by the Purchaser or the expiry of the thirty days or other agreed timeframe, whichever is the earlier. If no acceptance is received, the quotation or Offer will automatically lapse at the end of the thirty days unless the period of quotation or Offer is extended in writing by the Company and notice of the extension forwarded to the Purchaser prior to the expiry of the thirty days. The Company’s quotation or Offer will be deemed to have been accepted and a binding contract shall be formed between the Company and the Purchaser on the date the Company receives a verbal or written order from the Purchaser to purchase the Goods in accordance with the quotation or Offer.

COMPANY DOCUMENTS

Clerical errors and misprints in computations, typing or otherwise in any Company document are subject to correction by the Company by either re-issuing of the document or adjustment of the document, as the case requires. The Company shall not be liable for any cost, expense or damage incurred by the Purchaser as a result of any correction of any document by the Company.

ALTERATIONS AND OTHER AGREEMENTS

These Trading Terms and any other terms of the Company’s Offer or of any contract entered into between the Company and the Purchaser may only be varied, altered or waived by written agreement between the Company and the Purchaser. The Purchaser acknowledges and agrees that no verbal agreement between it and any employee, servant or agent of the Company shall be binding on the Company.

TECHNICAL INFORMATION

The Purchaser acknowledges and agrees that copyright in all drawings, illustrations, designs, specifications and other information provided by the Company in connection with any quotation or Offer or otherwise remains the property of the Company. The Purchaser further acknowledges and agrees that the details and contents of the drawings, illustrations, designs, specifications and other information shall remain confidential between the Company and the Purchaser.

DESIGN

In all cases where the design for the Goods is provided by the Purchaser, the Company accepts no responsibility for infringement of any patent, registered design, trade mark, copyright or other intellectual property in the execution of the Purchaser’s order and the Purchaser agrees to indemnify the Company against any infringement or unauthorised use of patents, trade marks, designs, copyright or other intellectual property arising out of the manufacture or use of the Goods.

PRICES AND CHARGES

a) Unless otherwise expressly stated, all prices are exclusive of sales tax, GST or any other tax or levy. Where applicable, those charges, duties and taxes will be added to the price of Goods supplied and are to be charged to the Purchaser’s credit account or are otherwise payable by the Purchaser as a separate charge. b) All prices are those current at the date of Offer and as stated in the quotation or Offer, subject to any variation clauses contained therein and to (c) of this clause. c) All prices are subject to variation where there is a variation of import prices or exchange rates payable by the Company with respect to the Goods purchased, the supply of parts or equipment required for the Goods or any matter in relation to the Goods.

TERMS OF PAYMENT

a) Where the Company offers a credit facility to the Purchaser, the Purchaser must make payment of any invoice no later than the end of the month immediately following the month in which the Goods were delivered and the invoice was rendered. b) If there is a change of the name, legal entity, structure or management and control of the Purchaser’s business, the Company will only continue to provide credit facilities if the Purchaser gives written notice to the Company of all such changes and the Company has given written notice to the Purchaser that it consents to such changes and that it will continue to provide such credit facilities. c) If the Company has not offered a credit facility to the Purchaser, the Purchaser must pay the full amount stated on the Company’s invoice before taking possession of the Goods. d) If the Purchaser has failed to pay an invoice in accordance with the payment terms specified above (whichever are applicable), the Company may, at its absolute discretion, impose any or all of the following penalties: (i) Where a discount, concession or allowance was previously given by the Company and stated in the invoice, such discount, concession or allowance may be withdrawn in part or in full, and any written notice by the Company to the Purchaser advising of such withdrawal will be deemed to be the new invoice. (ii) The Company may charge interest, at the rate of 5% per annum above the rate prescribed under the Penalty Interest Rates Act 1983 from time to time, calculated daily, on any amount outstanding in respect of the invoice. (iii) The Company may enforce its security interest in accordance with these Trading Terms and the PPS Act. (iv) The Company may terminate these Trading Terms. e) The Purchaser is liable for all costs, including legal costs (on a Solicitor/own client basis) and mercantile agents fees, incurred by the Company in relation to recovering any amount outstanding in respect of an invoice which the Purchaser has failed to pay in accordance with the payment terms specified above, or in relation to the Company enforcing or pursuing its rights, including in respect of any breach of these Trading Terms by the Purchaser.

SECURITY INTEREST

a) The Purchaser agrees that the Company, prior to accepting an Order, may require the Purchaser to arrange to grant the Company security for the Order (or any other credit accommodation provided) as a condition of accepting the Order. b) The Purchaser and the Company acknowledge that the PPS Act applies to all transactions made pursuant to these Trading Terms. c) The Purchaser acknowledges and agrees: (i) that these Trading Terms constitute a security agreement; (ii) to grant a PMSI to the Company in respect of all Goods supplied by the Company; (iii) to sign any further documents and/or provide any further information (which information the Purchaser warrants to be complete, accurate and up-to- date in all respects), which the Company may reasonably require to enable it to obtain a perfected registration of a financing statement or financing change statement on the Personal Property Securities Register for all Goods supplied; (iv) to give the Company not less than 14 days’ written notice of any proposed change in the Purchaser’s name and/or any other changes in the Purchaser’s details (including but not limited to changes in the Purchaser’s address, facsimile number, email address, trading name or business practice), to enable the Company to register a financing change statement where necessary; (v) to not register a financing change statement or make a demand to alter the financing statement pursuant to section 178 of the PPS Act in respect of the Goods without the prior written consent of the Company; (vi) that it will indemnify the Company for any liability for any costs of registration, maintenance (including registering a financing change statement), enforcement (including attempting to enforce) or discharge of a security interest and such other costs and expenses as the Company may incur, including in relation to subordination agreements; and (vii) it will be responsible for the full costs incurred by the Company (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPS Act. d) If Chapter 4 of the PPS Act would otherwise apply to the enforcement of a security interest arising in connection with these Trading Terms the Purchaser agrees the following provisions of the PPS Act will not apply to the enforcement of these Trading Terms: section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Purchaser; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Purchaser; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement). e) Pursuant to section 157 of the PPS Act, unless otherwise agreed to in writing by the Company, the Purchaser waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the Company’s security interest. f) The Purchaser agrees that immediately on request by the Company the Purchaser will take all reasonable steps and make all reasonable efforts to procure from any persons considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time require. g) The Purchaser gives the Company a security interest in all of the Purchaser’s present and after-acquired property in which Goods or materials supplied or financed by the Company have been attached or incorporated. h) In consideration of the Company entering into these Trading Terms with the Purchaser, the Purchaser hereby charges in favour of the Company the whole of the Purchaser’s present and future estate and interest, legal and equitable, in the Purchaser’s personal and real property to secure the Purchaser’s obligations pursuant to these Trading Terms and in respect of all monies owing now and in the future to the Company by the Purchaser. i) Without limiting the rights of the Company under these Trading Terms, the Purchaser acknowledges and agrees that the charge on the Purchaser’s property in the above sub-clause h) shall provide a caveatable interest in favour of the Company in respect of any real property and the Purchaser consents to the Company registering the Company’s interest in the Purchaser’s property, including by way of a caveat. j) The Company reserves the right, at any time and in its sole discretion, to make such amendments, alterations and additions to this clause 10 as it may, in its sole discretion, determine.

PROPERTY AND RISK

a) Risk in the Goods shall pass to the Purchaser on completion of delivery unless otherwise agreed in writing by the Company. Delivery shall be evidenced by signature of any person employed by the Purchaser on receipt of the Goods. b) Title to the Goods shall not pass to the Purchaser until the Company has received payment in full for the Goods, and for any other amounts owing by the Purchaser to the Company in relation to any other matter (including payments in respect of other goods or services supplied by the Company from time to time) and the Purchaser shall hold the Goods (including where such Goods have been converted or changed by any process, such as commingled or by way of accession) as fiduciary bailee and agent for the Company. c) Until title to the Goods passes to the Purchaser: (i) the Purchaser is only authorised to sell the Goods in the ordinary course of its business (which does not include sale for less than cost or on conditions); (ii) the Purchaser shall store the Goods, including goods into which the supplied Goods have been mixed, in such a manner as to show clearly that they are the property of the Company and shall upon demand deliver up such goods to the Company; and (iii) the Purchaser shall not charge the Goods in any way nor grant or otherwise give any security interest in the Goods to a third party while they remain the property of the Company. d) If the Purchaser fails to comply with any of these conditions or the Company in its absolute discretion considers that the Purchaser is in financial difficulties, the Company: (i) has the right to immediate possession of the Goods and the Purchaser irrevocably authorises the Company to enter any premises occupied by the Purchaser at any time (forcibly if necessary) in the Purchaser’s name, without notice to any person, and take the Goods; (ii) may retain all money paid on account of the Goods; (iii) may cease delivery of the Goods; and (iv) may recover from the Purchaser all losses (including loss of profits) without affecting any of its other rights and without being liable in any way to any person. e) Until payment is made in full for the Goods and of all other amounts owing by the Purchaser to the Company (whether such amount arises out of these Trading Terms or otherwise), if the Purchaser sells the Goods, the Purchaser must: (i) hold all proceeds on trust for and as agent for the Company immediately when they are receivable or received, or pay those proceeds into an account with a bank or deposit taking institution as trustee for the Company; (ii) not mix the proceeds with any other money; (iii) account to the Company for the proceeds; and the Company may trace all proceeds of sale of the Goods received by the Purchaser through the relevant account or any other account maintained by the Purchaser. f) If, at the time the Company seeks to recover the Goods, they have been incorporated in any product (including being commingled or by way of accession): (i) the Company and the Purchaser will be treated as owners of that product as tenants in common in proportion to their respective contributions; (ii) if relevant, the Purchaser will be presumed to have disposed of products not incorporating the Goods ahead of products incorporating the Goods; and (iii) any accessory or item which accedes to any of the Goods by an act of the Purchaser or any person at the direction or request of the Purchaser becomes and remains the property of the Company until the Company is paid in full in accordance with these Trading Terms, at which time the property in the Goods (including the accessory) passes to the Purchaser.

DELIVERY

a) The method and date of delivery of all Goods purchased shall be on the terms as stated by the Company’s quotation or Offer. Any freight and insurance costs for transport of the Goods for delivery shall be at the cost and expense of the Purchaser. b) The delivery dates and completion times contained in the quotation or Offer are estimates only unless expressly stated to be an essential term of the quotation or Offer and may be varied at any time by the Company’s availability of products, materials, labour and transport and other contingencies. c) Delivery dates and completion times are subject at all times to variation by the Company, due to delay or disruption by or due to any matter beyond the Company’s reasonable control. d) Delivery is at all times at the risk of the Purchaser. e) The Company may at its option deliver the Goods to the Purchaser in instalments unless otherwise agreed by the Company and the Purchaser. If the Company delivers any of the Goods by instalments and any one of those instalments is defective for any reason, it is not a repudiation of the contract of sale formed by these Trading Terms, with the defective instalment being a severable breach (if any).

INSPECTION AND RETURN OF GOODS

a) No cancellations or partial cancellations of an Order by the Purchaser shall be accepted by the Company unless the Company has first consented in writing to such cancellation or partial cancellation and unless a cancellation fee has been paid by the Purchaser, as determined by the Company, which will indemnify the Company against all loss, without limitation. b) Except where Goods supplied by the Company are defective, and subject to any warranty, Goods will only be accepted for return by the Company if the invoice number and full details of the reason for the return have previously been supplied to the Company in writing and the Company has given the Purchaser prior written notice of its acceptance of the return of the Goods. c) The Purchaser shall inspect all Goods received by it immediately upon receipt of the Goods from the Company (receipt being the date of delivery or the date of collection, as the case requires) and the Purchaser must notify the Company in writing of any alleged short or wrong delivery, damage or other contractual breach within 7 days of receipt of the Goods. If the Company does not receive such notice within 7 days, the Purchaser shall be deemed to have accepted delivery and the Company’s obligation will be deemed to have been fulfilled. d) Goods returned by the Purchaser pursuant to clauses 13(a) and (c) above will only be accepted by the Company if the Goods are in the same condition as when the Goods were originally delivered to the Purchaser. e) If Goods are made by the Company to a specified order of the Purchaser or according to the Purchaser’s specifications and design, the Company will not accept return of those Goods or allow credit to the Purchaser. f) The Company’s acceptance of return of the Goods is not an acceptance of or granting of credit to the Purchaser by the Company. g) Delivery of all Goods returned by the Purchaser is to be at the Purchaser’s expense and risk. h) The Company reserves the right to charge the Purchaser a re-stocking fee equal to 20% of the original purchase price, for accepting a return of the Goods. i) Without limiting the above, the Company reserves the right, at its absolute and sole discretion, to refuse the return of Goods custom-made at the request of the Purchaser (including pre-welds) or those produced on special order of the Purchaser, or Goods that require refrigeration or otherwise have a limited shelf life (including adhesives or elastomeric products), any Goods that include chemicals and such chemicals have been opened. If the Company agrees to accept the return of such Goods, such return shall only be accepted by the Company on terms to be determined and agreed by the Company from time to time. Without limiting any other right of the Company contained in these Trading Terms, the Company may refuse to accept the return of Goods that have a limited shelf life where such Goods have less than six (6) months of saleable shelf life remaining as at the date of attempted or requested return.

WARRANTIES AND LIMITATION OF LIABILITY

a) The Competition and Consumer Act 2010 (Cth) may imply certain conditions, warranties and guarantees into these Trading Terms that cannot be excluded or modified. These Trading Terms do not exclude or modify any of those conditions, warranties or guarantees if to do so would contravene that law or make any part of these Trading Terms void. b) Subject to clause 14(a), the Company excludes all warranties, conditions and guarantees that may be implied into these Trading Terms (including as to acceptable quality, fitness for purpose, supply of goods by description and supply of goods by sample/demonstration model) and limits its liability for breach of any implied condition, warranty or guarantee that cannot be excluded to (at its option): (i) the repair or replacement of those Goods; or (ii) reimbursement of the cost of having those Goods repaired or replaced; provided that the defects have arisen solely from faulty materials or workmanship, the Goods have not received maltreatment, inattention or interference, any expiry date applicable to the Goods has not passed, the Purchaser can produce an invoice for the purchase of the Goods, and the defective Goods are promptly returned to the Company. c) The Company will use its reasonable endeavours to achieve delivery of the Goods by the date nominated in the Order but the Company shall have no liability to the Purchaser for delay in delivery of the Goods nor will the Purchaser be entitled to claim against the Company in respect of loss or damage caused by delay in delivery. d) Subject to clause 14(e) and (f), to the extent permitted by law, the Company’s liability to the Purchaser: (i) under, or arising out of, or in connection with the supply of the Goods; (ii) otherwise at law or in equity including: (A) by statute to the extent permitted by law; (B) in tort for negligence or otherwise, including negligent misrepresentation; (C) in contract (including by way of indemnity and liquidated damages); and (D) on any basis whatsoever, shall be limited to one of the following, as determined by the Company: (iii) replacement of the defective Goods; or (iv) payment that shall not exceed 20% of the amount paid to the Company for the Goods. e) The limitation in clause 14(d) does not apply to claims in respect of personal injury to, illness or death of persons. f) Despite any other provision of these Trading Terms, to the extent permitted by law, the Company has no liability to the Purchaser nor will the Purchaser be entitled to claim against the Company in respect of consequential loss (including, but not limited to, damages for loss of business profits, business interruption and loss of business information): (i) under, or arising out of, or in connection with the supply of the Goods; (ii) otherwise at law or in equity including: (A) by statute to the extent permitted by law; (B) in tort for negligence or otherwise, including negligent misrepresentation; (C) in contract (including by way of indemnity and liquidated damages); and (D) on any basis whatsoever. g) This clause 14 shall survive termination of these Trading Terms. h) The Purchaser acknowledges that it has not relied on any representation made by the Company which has not been expressly stated in these Trading Terms. i) The Purchaser indemnifies the Company against all loss, liability, cost (including legal costs on a full indemnity basis) and expense incurred by the Company: (i) in connection with any act or omission of the Purchaser including, but not limited to, negligence of the Purchaser or any unauthorised representation made or warranty given by the Purchaser in connection with the Goods; or (ii) as a result of any claim made or action brought in connection with the Goods or their use, other than a claim or action brought by the Purchaser under these Trading Terms or a condition or warranty implied by law which is not excluded by these Trading Terms. j) The Purchaser acknowledges that the Goods are not manufactured by the Company. Accordingly, the guarantee of the manufacturer of the Goods (if any) is accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the Goods. The Company may, in its sole discretion, assign to the Purchaser on request made by the Purchaser the benefit of any warranty or entitlements to the Goods that the manufacturer has granted to the Company under any contract or by implication or operation of law, but only to the extent that the benefit of any warranty or entitlement is assignable.

DEFAULT

If the Purchaser defaults in or commits a breach of its observance and performance of its obligations to the Company or, if the Purchaser being a natural person commits an act of bankruptcy, or, if the Purchaser being a company, any resolution to wind-up the Purchaser’s business is passed or presented, or a receiver and manager or an official manager of the Purchaser’s undertaking, property or assets is appointed, the Company may, without prejudice to any other remedy open to it a) terminate these Trading Terms and cease manufacture and delivery of all outstanding Orders; b) pursuant to a general lien held by the Company in respect to all Goods purchased by the Purchaser in the Company’s possession, forfeit such Goods and deal with them as the Company sees fit; and c) repossess Goods held by the Purchaser for which payment has not been received and deal with such Goods as the Company sees fit. If the Company elects not to terminate these Trading Terms the Company may, by notice in writing to the Purchaser, cancel or vary any credit facilities, concessions or discounts available to the Purchaser.

SERVICE OF NOTICE

a) Subject to b) below, any notice or document required to be served under these Trading Terms or under any contract entered into between the Company and the Purchaser will be sufficiently served if either left at the address of the respective party as stated in the Contract or as otherwise notified from time to time in writing by that party or if posted by pre-paid post to such address. If the document or notice is posted, service will be deemed to have been effected three days after the date on which the document or notice was posted. b) Notwithstanding a) above, any notice or document required or permitted to be given to the Company for the purposes of the PPS Act must be given in accordance with the PPS Act.

CONSENT TO CREDIT CHECK – PRIVACY ACT

a) By signing the attached Customer and Credit Application form the Purchaser acknowledges and agrees that the Privacy Act allows the Company to give a credit reporting agency certain personal information about the Purchaser at any time after signing such form. b) The Purchaser acknowledges and agrees that the Company may contact any trade references or other credit providers and may acquire information from or provide information to them in relation to the credit worthiness of the Purchaser.

GUARANTEE AND INDEMNITY

a) The Guarantor hereby guarantees the due and punctual payment by signature of all monies that becomes due and payable by the Purchaser to the Company under these Trading Terms and also the due and punctual performance by the Purchaser of the obligations of the Purchaser pursuant to these Trading Terms (the “Guarantee”). b) In consideration of the Company entering into these Trading Terms with the Purchaser, the Guarantor hereby charges in favour of the Company the whole of the Guarantor’s estate and interest, legal and equitable, in the Guarantor’s personal and real property to secure the Guarantor’s obligations pursuant to these Trading Terms. c) Without limiting the rights of the Company under these Trading Terms, the Guarantor acknowledges and agrees that the charge on the Guarantor’s property shall provide a caveatable interest in favour of the Company and the Guarantor consents to the Company registering the Company’s interest in the Guarantor’s property, including by way of a caveat. d) The Guarantee is a continuing guarantee and shall not be discharged in whole or in part by the payment at any time of any part of the money payable by the Purchaser pursuant to these Trading Terms or by settlement of account, intervening payment, or other matter or thing whatsoever. e) The Guarantee shall not be affected or prejudiced by any variation or modification at any time to these Trading Terms. f) The Guarantee shall at all times be valid and enforceable against the Guarantor notwithstanding: (i) that no demand for payment has been made to the Purchaser; and (ii) that the Purchaser was prohibited (whether expressly or by implication) by law, contract or otherwise from entering into these Trading Terms or was without capacity, power or authority to enter into these Trading Terms. g) The Guarantee is irrevocable and shall not be affected by the death, bankruptcy or incapacity of any of the Guarantors. h) If any payment made by the Purchaser to the Company is subsequently avoided or set aside by reason of any statutory provision or otherwise, such payment shall not prejudice or otherwise affect the Guarantee, or the rights of the Company pursuant to this clause 18, to the intent that the Company shall, with respect to its rights recover pursuant to this clause 18 any monies secured, be restored to the same position in which the Company would have been had such payment not been made. i) In addition, the Guarantor agrees to indemnify the Company in respect of all costs, charges and expenses whatsoever, which the Company may incur by reason of any default on the part of the Purchaser under or in relation to these Trading Terms. j) The Guarantor is liable to pay to, and indemnify the Company for, the Company’s reasonable expenses incurred in enforcing the Guarantee. k) If more than one party signs as Guarantor, in this clause 18 each reference to “Guarantor” is a reference to them jointly and each of the individually.

ACKNOWLEDGEMENT

The Purchaser hereby acknowledges having read and agreed to these Trading Terms and agrees that these Trading Terms shall apply to all future contracts between the Company and the Purchaser, unless agreed otherwise in writing by both parties.

CONFIDENTIALITY

The Purchaser acknowledges that the terms and conditions on which the Company sells the Goods (including rates detailed in quotations and Offers) is confidential information belonging to the Company and accordingly the Purchaser agrees to keep the terms of this agreement, including any quotation or Offer, confidential and shall not disclose or make available to any third party a copy of this agreement, any credit application form or any quotation or Offer.

SEVERABILITY

Notwithstanding that any provision of these Trading Terms may prove to be illegal or unenforceable pursuant to any state or rule of law, or for any other reason, those provisions are deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of these Trading Terms shall continue in full
force and effect.

APPLICABLE LAW

Unless otherwise agreed in writing by the Company, these Trading Terms and the sale of all Goods by the Company shall be governed by the applicable law in the State of Victoria.