Terms and Conditions of Trade
These terms and conditions of trade apply to sales made by The O’Kelly Group Pty Ltd ABN 20 141 977 988 of 6/24 Monash Drive, Dandenong South, Victoria 3175 (“The O’Kelly Group”) to the Customer.
In these terms, the following terms have these meanings unless the contrary intention appears:
(a) Business Day means a day on which trading banks are open for business in Melbourne Australia, except a Saturday, Sunday or public holiday.
(b) Consequential Loss means any loss or damage suffered by the Customer or any other person which is indirect or consequential; or which is by way of loss of revenue, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity.
(c) Custom Printed Products means a custom printed product ordered by the Customer pursuant to these terms.
(d) Custom Print Quotation and Order Form means the form of this name or description available from The O’Kelly Group.
(e) Customer means a customer supplied or to be supplied Products by The O’Kelly Group.
(f) Defect means a defect, flaw or imperfection in a Product which prevents the Product from being used for the purposes intended under these terms or which makes the use of the Product dangerous, but does not include anything which has been disclosed as a feature or limitation of the Product by The O’Kelly Group prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial.
(g) Delivery Details means the requested details of delivery of the Products set out in the Purchase Order, including details of delivery address and requested delivery date.
(h) Force Majeure Event means any failure or delay in the performance of a parties’ obligations under these terms as a result of a national strike, lockout, work stoppage, labour dispute, material shortage, utility outage, delay in transportation, fire, flood, earthquake, severe weather, act of God, accident, trade sanction, embargo, act of war, act of terror, condition caused by national emergency, new or changed Law, or any other act or cause beyond the reasonable control and without fault of the delayed party, and whether affecting that party or its agents, subcontractors, dealers or suppliers, for as long as such circumstances prevail.
(i) GST means any goods and services tax and any replacement or similar tax.
(j) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(k) Guarantor means the guarantor or guarantors that have signed a guarantee in favour of The O’Kelly Group and a reference to “Guarantor” includes all Guarantors.
(l) Invoice means The O’Kelly Group's invoice for Products issued in accordance with clause 5.1 of these terms.
(m) Law means any legislation, ordinance, regulation, by-law, order, award, proclamation, direction and practice note of the Commonwealth, a State or Territory or any government agency, certificate, licence, consent, permit, approval, qualification, registration, standard and requirement, or any other law from which legal rights and obligations arise.
(n) Liabilities means all damages, losses, liabilities, costs, charges, expenses, outgoings or payments (whether direct or indirect, consequential or incidental) including any damages, losses, liabilities, costs, charges, expenses, outgoings or payments in respect of any damage to property or injury to, or death of, any person.
(o) Manufacturer means a third party entity engaged by The O’Kelly Group to manufacture Products.
(p) Personnel mean all employees, officers, agents and contractors.
(q) PPS Act means the Personal Property Securities Act 2009 (Cth).
(r) Products mean products supplied by The O’Kelly Group as set out in the relevant Purchase Order and includes Custom Printed Products.
(s) Purchase Price means the price of Products pursuant to these terms.
(t) Purchase Order means any order for Products, including the Delivery Details, placed by Customer in accordance with clause 3.
(u) Related Body Corporate has the meaning given in section 9 of the Corporations Act 2001 (Cth).
SALE OF PRODUCTS
- The O’Kelly Group will sell and Customer will buy Products in accordance with these terms.
- Where the Products are Custom Printed Products, they are sold on a firm sale basis and may not be returned for credit or exchanged unless otherwise agreed in writing.
- Purchase Order
(a) Each Purchase Order placed by the Customer will have a minimum order value set by The O’Kelly Group. Delivery fees may also be charged where Purchase Orders, are made for less than the minimum order form.
(b) Placement of a Purchase Order constitutes acceptance by Customer of the terms and conditions of these terms.
(c) The O’Kelly Group will notify Customer whether it accepts or rejects the Purchase Order within 5 Business Days of receipt of the Purchase Order. If The O’Kelly Group rejects the Purchase Order, The O’Kelly Group will have no responsibility or obligation to the Customer in relation to the Products requested in the rejected Purchase Order.
(d) The O’Kelly Group is not liable for any lost or misplaced Purchase Orders. Customer should submit a new Purchase Order if it has not received a response from The O’Kelly Group in accordance with clause 3.1(c) within 5 Business Days of issuing the Purchase Order.
(e) Where Customer submits a Purchase Order with incorrect pricing information, Customer will be notified by The O’Kelly Group of the correct amount, and Customer will be deemed to have agreed to the re-stated amount if no written objection is received thin 3 days.
(f) Once accepted by The O’Kelly Group, Purchase Orders cannot be cancelled or varied by the Customer.
- Custom Printed Products
(a) Where Customer requires Custom Printed Products, The O’Kelly Group will provide Customer with a Custom Print Quotation and Authorisation Form.
(b) The terms contained in the executed Custom Print Quotation and Authorisation Form will prevail over the terms of these terms to the extent of any inconsistency.
- Price List
The Purchase Price for the Products are as set out in The O’Kelly Group’s then current price list, which is subject to adjustment pursuant to clause 4.2 from time to time.
- The O’Kelly Group reserves the right to increase the Purchase Price from time to time, including where there is:
(a) a change in any Law or a new Law affecting the price of the Products or the price of delivery of the Products;
(b) an increase in the cost to The O’Kelly Group due to any circumstance beyond The O’Kelly Group's reasonable control (including but not limited to as a result of a Force Majeure Event or currency exchange rate variations);
(c) a change in the Delivery Details, quantities or specifications for Products requested by Customer; or
(d) any delay caused by Customer's instructions or failure to give adequate information or instructions.
INVOICING AND PAYMENT
- Details in Invoice
All Invoices issued by The O’Kelly Group will include details of the Purchase Price and any other costs and charges payable by the Customer in accordance with these terms, including (where relevant) all reasonable charges associated with delivery of the Products.
- Payment of Purchase Price
(a) Unless otherwise stated in writing by The O’Kelly Group, Customer must pay the Purchase Price plus GST plus any delivery charges, taxes or other duties set out in the Invoice, without deduction, within 30 days from the end of month in which the invoice was issued.
(b) Where the Customer has requested multiple delivery dates, The O’Kelly Group may choose to issue multiple Invoices.
- Payment in cleared funds
Payment by cheque or other negotiable instrument is not regarded as received until funds are cleared.
Without in any way limiting The O’Kelly Group’s right to require payment in full in accordance with clause 5.2, The O’Kelly Group may at its sole discretion charge interest on overdue accounts each day that the account remains overdue at the rate of 2% above the NAB Bank's variable "NAB Bank Reference Rate" as applicable from time to time.
- Recovery Costs
The Customer shall pay all costs and expenses incurred by The O’Kelly Group, its advisers, mercantile agents and any other person, in respect of any action instituted or considered against Customer, whether for debt, possession of Products or otherwise.
The Purchase Price is expressed as being exclusive of GST.
- No right to offset
No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by Customer to The O’Kelly Group may be offset against any liability whether present, future, actual, contingent or prospective of Customer to The O’Kelly Group hereunder or on any other account whatsoever.
DELIVERY OF PRODUCTS
- Date for Delivery and Delay
(a) The O’Kelly Group will use its reasonable commercial endeavours to pack, invoice and deliver all orders for Products to the Customer promptly. Delivery times may vary in peak trading periods.
(b) The O’Kelly Group will not be liable for any delay, failure or inability to deliver, including any delay caused by the Manufacturer or third party supplier of Products.
(c) If The O’Kelly Group becomes aware of any event likely to affect the Delivery, The O’Kelly Group will give the Customer written notice of the event and take all reasonable steps to minimise the delay.
(d) The Customer is not relieved of any obligation to accept or pay for Products because of any delay in delivery.
(e) A charge will be rendered to cover The O’Kelly Group’s cost of any frustrated delivery (i.e. the Customer is not present at the delivery location on the date for delivery as set out in the Delivery Details).
- Shortage in Products delivered
(a) If the quantity of Products delivered varies from the amount specified on the Purchase Order or Invoice, the Customer must notify The O’Kelly Group either in writing or via The O’Kelly Group Customer Service team (03) 9797 6161 of the shortfall within 48 hours after receipt of Products by Customer. Unless The O’Kelly Group is so notified, the correct quantity of Products is deemed to have been delivered, and Customer must accept Products and pay in full despite the shortfall.
(b) If the quantity of Products delivered is more than the amount specified in the Purchase Order, Customer must immediately inform The O’Kelly Group either in writing or via The O’Kelly Group Customer Service team (03) 9797 6161 and The O’Kelly Group is either entitled to charge Customer for the excess Product or to attend the Customer’s premises to pick up the excess Product.
Customer must, within 48 hours of delivery of the Products, check whether Products suffer from any Defect.
- Notice of defect
Products will be deemed delivered in good condition and in accordance with Customer’s instructions unless the Customer gives The O’Kelly Group either written notice or notification via The O’Kelly Group Customer Service team (03) 9797 6161 of the Defect within 48 hours of delivery.
- Customer's obligations
If Customer gives The O’Kelly Group notice under clause 7.2, it must:
(a) preserve Products in the state in which they were delivered; and
(b) allow The O’Kelly Group (or its nominated agent) access to Customer’s premises to inspect Products.
- Replacement of Products
The O’Kelly Group will, at its option, replace Products, supply equivalent Products or pay the cost of acquiring equivalent Products only where:
(a) Customer has given written notice under clause 7.2 and complied with clause 7.3, and The O’Kelly Group is satisfied with Customer’s claim;
(b) if The O’Kelly Group elects to have Products returned, Products are returned to The O’Kelly Group (or as The O’Kelly Group directs) in the same condition as when first delivered to Customer; and
(c) returns are made in accordance with The O’Kelly Group’s returns procedures, as detailed in clause 7.5.
- The O’Kelly Group’s returns procedure
(a) Customer must obtain the prior agreement of The O’Kelly Group if it wishes to return Products and must pay all freight charges and costs associated with the return of the Products.
(b) If The O’Kelly Group accepts the Products for return, Customer will receive a credit for the returned Products equal to the price charged by The O’Kelly Group less a 10% deduction for handling and restocking charges.
(c) The O’Kelly Group will not under any circumstances accept Products for return that:
(i) are classified as indent, are Custom Printed Products, have been specifically produced, imported or acquired to fulfil any agreement;
(ii) are discontinued Products or no longer stocked by The O’Kelly Group;
(iii) have been altered in any way;
(iv) have been used; or
(v) are not in their original condition and packaging.
- The O’Kelly Group's liability for Defects
So far as permitted by law:
(a) The O’Kelly Group’s liability to Customer in relation to any Defects is limited to replacement of Products, supply of equivalent Products or payment of the cost of replacement of Products or acquiring equivalent Products in accordance with clause 7.4; and
(b) The O’Kelly Group is not liable under any circumstances for damage arising from any Defects except in accordance with this clause 7.
RISK AND TITLE
The risk in Products passes to Customer on delivery of Products to Customer's requested delivery location or to a freight forwarder nominated by Customer (whichever occurs first) (“Delivery”). The O’Kelly Group is not liable to Customer for any loss or damage or deterioration of Products after Delivery, even if The O’Kelly Group arranges freight.
Customer must insure Products for any loss or damage from the date of Delivery.
(a) Customer acknowledges and agrees that title to the Products will only pass to the Customer when Customer pays the Invoice in relation to the Products in full. Until The O’Kelly Group receives payment of the Invoice in full, Customer will hold the Products at The O’Kelly Group’s sole discretion as bailee only. Prior to receipt of the Invoice in full, Customer must:
(i) not change or obscure in any way any identification marking that The O’Kelly Group has placed on the Products by lettering and numbering;
(ii) not sell the Products except to a bona fide purchaser for value;
(iii) keep all proceeds from the sale of the Products in trust for and on behalf of The O’Kelly Group in a separate trust account; and
(iv) promptly pay the proceeds of any sale of the Products to The O’Kelly Group.
(b) Payment of the proceeds from the sale of the Products by Customer to The O’Kelly Group does not relieve Customer from the obligation of paying The O’Kelly Group the Invoice.
(c) Customer acknowledges and agrees that the provisions this clause 8 constitute the security agreement between Customer and The O’Kelly Group creating a security interest in all present and future supplies. This security interest in the Products extends to the proceeds of any sale or insurance claim in respect of the Products and monies held in a separate account arising from the sale of the Products for the purposes of PPS Act as amended and to the extent applicable the PPS Act applies.
(d) Customer acknowledges that The O’Kelly Group may do anything reasonably necessary, including but not limited to registering any security interest which The O’Kelly Group has over the Products on the Personal Property Securities Register (“PPSR”) established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirements of the PPS Act.
(e) Customer agrees without charge to provide all information and do all things reasonably necessary to assist The O’Kelly Group to undertake the matters set out in clause 8.3 above. Customer waives pursuant to section 157(3)(b) of the PPS Act the right to receive notice of a verification statement in relation to any registration on the PPSR.
(f) The parties agree that, pursuant to section 115 of the PPS Act, the following provisions in the PPS Act do not apply in relation to a security interest in the Products to the extent, if any, mentioned in clause 8.3 (words in this provision have the same meaning as in the PPS Act):
(i) section 95 (notice of removal of accession), to the extent that it requires The O’Kelly Group to give a notice to Customer;
(ii) section 125 (obligation to dispose of or retain collateral) in that The O’Kelly Group may extend the time for delay as it considers appropriate;
(iii) section 129 (disposal by purchase);
(iv) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
(v) paragraph 132(3)(d) (contents of statement of account after disposal);
(vi) subsection 132(4) (statement of account if no disposal);
(vii) section 135 (notice of retention);
(viii) section 142 (redemption of collateral); and
(ix) section 143 (reinstatement of security agreement).
- No licence or assignment
Customer's purchase of Products does not confer on Customer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in Products.
- No warranty
The O’Kelly Group makes no representation or warranty to Customer of any kind, express or implied, that Products will not infringe any intellectual property rights of a third party.
- Custom Printed Products
Customer warrants that it owns all the rights to the intellectual property in all artwork to be printed on Custom Printed Products, and indemnifies, and agrees to keep The O’Kelly Group indemnified against any and all claims brought in respect to an alleged infringement of any such intellectual property rights by a third party.
CUSTOMER’S OBLIGATIONS TO OBTAIN ALL NECESSARY AUTHORITIES
Customer must observe all legal requirements relating to its use or sale of Products and carry out its obligations under these terms including, but not limited to, obtaining and maintaining all necessary permits, licences and registrations.
THIRD PARTY CLAIMS AND ALL DEALINGS WITH THIRD PARTIES
(a) In relation to any third party complaints or claims, Customer must:
(i) deal promptly with all third party complaints or claims in relation to Products;
(ii) promptly inform The O’Kelly Group of all material complaints or claims;
(iii) not admit liability on behalf of The O’Kelly Group in respect of any complaint or claim; and
(iv) not resolve or settle any complaint or claim in a way which may result in The O’Kelly Group incurring any liability (whether to a Customer, consumer or any other person).
(b) In relation to all dealings with third parties, Customer must:
(i) not hold itself out, and procure that its Personnel do not hold out, to be associated with or employed by, The O’Kelly Group; and
(ii) use its best endeavours, and procure that its Personnel use their best endeavours, to maintain the reputation of The O’Kelly Group at all times.
Customer and the Guarantors jointly and severally indemnify and agree to keep The O’Kelly Group indemnified against any Liabilities which The O’Kelly Group suffers, incurs or is liable for as a result, directly or indirectly, of:
(a) any breach of these terms by Customer; or
(b) any negligent act or omission by Customer.
NO CONSEQUENTIAL LOSS
The O’Kelly Group is not liable for any Consequential Loss under or in connection with these terms.
- Breach of agreement
The O’Kelly Group may terminate its agreement with Customer immediately by giving written notice to Customer if:
(a) Customer breaches any material provision of these terms (including without limitation any breach in respect of an obligation to pay money) and fails to remedy the breach within 7 days after receiving notice requiring it to do so;
(b) Customer breaches a material provision of these terms where that breach is not capable of remedy and fails to take any action required of it by The O’Kelly Group within 7 days after receiving notice requiring it to do so; or
(c) any event referred to in clause 14.2 occurs.
- Termination events
Customer must notify The O’Kelly Group immediately if:
(a) it disposes of the whole or any material part of its assets, operations or business;
(b) it ceases to carry on business;
(c) there is a change of the directors or shareholders to Customer;
(d) it ceases to be able to pay its debts as they become due;
(e) any step is taken by a mortgagee to take possession or dispose of the whole or part of its assets, operations or business;
(f) any step is taken to enter into any arrangement between it and its creditors; or
(g) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in relation to the whole or part of its assets, operations or business.
- No transfer of Products
Upon the disposal of Customer’s business, or part thereof, to a third party, Customer may not, without The O’Kelly Group’s prior written consent, transfer its Products to the new owner of the business where those Products have not been paid for in full by Customer.
- After termination
If The O’Kelly Group’s agreement with Customer is terminated, Customer must, within 5 Business Days after the date of termination, pay The O’Kelly Group all amounts it owes The O’Kelly Group irrespective of whether those amounts have fallen due and whether or not an Invoice has been issued by The O’Kelly Group.
- Surviving provisions
Clauses 4 and 10 to 13 inclusive continue to apply after termination.
- Custom Printing Products
If The O’Kelly Group’s agreement with Customer is terminated, Customer must, in addition to Customer’s obligations under clause 15.1, Customer must within 5 Business Days after the date of termination, pay The O’Kelly Group for all Custom Printed Products currently being held in stock, or on order, by or to The O’Kelly Group.
No party is liable for any failure to perform or delay in performing its obligations under these terms if that failure or delay is due to a Force Majeure Event. If that failure or delay exceeds 90 days, the other party may terminate with immediate effect by giving written notice to the other party. This clause does not apply to any obligation to pay money.
The O’Kelly Group may in its absolute discretion sub-contract the manufacture or delivery of Products or otherwise assign these terms. Customer must not otherwise assign or otherwise deal with any rights it has pursuant to these terms without the prior written consent of The O’Kelly Group.
- If a provision of, or the application of a provision of, these terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
- Where a clause in these terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these terms.
A notice to be given by a party to another party must be in writing and sent to the address previously nominated by that party and will be deemed to be duly given:
(a) in the case of hand delivery, on the day of delivery;
(b) three (3) Business Days after the date of posting by pre-paid registered post; or
(c) if sent by email, upon receipt of an email read receipt from the recipient.
- Governing law
These terms are governed by the law applicable in the State of Victoria, Australia and the parties consent to the exclusive jurisdiction of the courts of the State of Victoria, Australia.
Time is not of the essence except in relation to payment.
- Business Day
Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the next Business Day.
The failure of a party at any time to require performance of any obligation under these terms is not a waiver of that party’s right:
(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
(b) at any other time to require performance of that or any other obligation under these terms.
- Relationship between the Parties
Nothing in these terms creates any fiduciary relationship, nor any partnership, join venture or agency relationship between the parties.
- Exclusion of all other terms and conditions
These terms apply to the exclusion of all terms and conditions of Customer, and override any terms of purchase used by Customer in relation to ordering and purchasing Products. No variation of these terms is binding unless expressly agreed in writing by a Director of The O’Kelly Group.