1.1 Orders for Goods (Orders) must be placed on the form provided for that purpose by OI (including online) (Order Form) and all details required on that Order Form must be completed in full.
Price for Goods: Prices given are exclusive of GST and other applicable taxes and duties, which, where applicable, are payable by you in addition to the price. The applicable price will be the price set out in the Order Form or as otherwise specified by OI.
Resale prices: Any resale prices indicated by OI are non-binding suggestions only.
Brand and Consumer Promotion and Protection:
4.1 You acknowledge the importance and value of the OI brand and intellectual property (see clause 22.6). To ensure that the OI brand and intellectual property is protected and marketed consistently with OI policies, you must comply with OI’s brand promotion requirements issued from time to time and all promotional materials and advertising must be approved by OI before being made available to the public.
4.2 You will make available instore and on any website you operate, at OI’s cost, promotional, safety and other product information and guidance materials (Product Materials) supplied by OI from time to time.
Payment: For each Order, OI will issue an invoice for the relevant Goods. Payment for Goods must be made without set off or deduction, not later than the 20th day of the month following the date of such invoice. If you fail to make any payment to OI by the date due for payment, that is a breach of these Trade Terms and OI may, at its sole discretion (and without prejudice to any other rights or remedies available to it) require you to pay, on demand, default interest on any amount outstanding at 2.0% per month accruing on a daily basis from the due date for payment until the date when payment is actually made. You will be liable to pay all expenses and costs (including legal costs on a solicitor-client basis) in connection with OI recovering or attempting to recover any overdue amount.
Payment Allocation: OI may in its discretion allocate any payment received from you towards any invoice that OI determines and may do so at the time of receipt or at any time afterwards and on default by you may reallocate any payments previously received and allocated. In the absence of any payment allocation by OI, payment shall be deemed to be allocated in such manner as preserves the maximum value of OI’s purchase money security interest in the Goods.
Delivery: Delivery of Goods to you shall occur when OI places such Goods at the disposal of OI's nominated carrier at OI's premises or when OI gives possession of the Goods directly to you, unless the parties otherwise agree in writing (Delivery) and no failure or refusal by you to take possession of any Goods shall affect the time of Delivery. Any time stated for Delivery on an Order Form or otherwise is an estimate only and not of the essence of the Contract, and OI will in no event be liable for any late Delivery.
Risk: All risk of loss or damage in, or in relation to, Goods shall pass to you upon Delivery.
Defects and returns:
9.1 Where you give OI written notice of any defect in any Goods within 10 days of Delivery, OI shall replace the defective Goods or refund the price paid by you for such Goods. Any replaced defective Goods shall become the sole property of OI upon Delivery of the relevant replacement Goods and, if required by OI, shall be returned to OI at OI's cost. If you do not notify OI of such failure within the specified period, you shall be deemed to have accepted such Goods as being free of defects and complying with all relevant specifications.
Credit policy: Goods are supplied in good faith and on a firm sale basis, and not on a consignment or "sale or return” basis.
Reservation of title: You acknowledge that, pending payment of all amounts owing, and the performance of all obligations, under any Contract, you are in possession of any Goods supplied by OI solely as bailee for OI. Your right to possession of the Goods shall cease if you are in default under these Trade Terms or any Contract.
12.1 On agreeing to these Terms you grant a continuing security interest in favour of OI in all present and after acquired Goods as security for payment of all amounts owing, and the performance of all obligations, under any Contract.
12.2 You acknowledge that OI may register its security interest in the Goods, and all of your present and future rights in relation to the Goods and any proceeds, on the Personal Property Securities Register established under the Personal Property Securities Act 1999 (PPSA).
12.3 You shall provide all information and do all things including the execution of documents as OI may require for the purpose of securing to OI the Goods, the payment of all amounts owing and the performance of all of your obligations under the Trade Terms, and for the purpose of ensuring that OI has a perfected first ranking security interest in the Goods and any proceeds under the PPSA. You shall give written notice to OI of any change to your name at least 14 days before such change takes effect.
12.4 You will:
12.4.1 maintain and keep the Goods in good
12.4.2 permit OI at all reasonable times by its order and condition and protected against theft, loss or damage; and agents, employees and officers to enter upon any land or premises owned or occupied by you to view and inspect the Goods.
12.5 You waive your right to receive a copy of any verification statement under the PPSA and agree that as between you and OI:
12.5.1 You will have no rights under sections
12.5.2 any rights of OI in addition to those in 114(1)(a), 116, 120(2) and 121 of the PPSA; and Part 9 of the PPSA shall continue to apply.
12.6 Any payments made to OI by you on an unspecified basis shall be applied:
12.6.1 first, in payment for Goods supplied by
12.6.2 second, in payment for Goods supplied OI and which have been sold by you; and by OI and which have not been sold by you.
12.7 You will not, except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of, the Goods.
12.8 In addition to any rights that OI has under thePPSA, OI shall have the right, as your agent, at any time while any amounts owing by you to OI under the Trade Terms remains outstanding, and including (without limitation) if any of the events specified in clause 20 occur, to enter into any premises where Goods are stored and remove them without being responsible for any damage caused in doing so.
Limited warranty: OI warrants that Goods sold to you will comply in all material respects with the relevant Goods specifications notified by OI to you from time to time and will be free from material defects.
Representations and warranties: Except for the warranty contained in clause 13, OI expressly excludes, and you shall not be entitled to rely or seek to rely on, any representation, undertaking, statement or warranty whatsoever made by or on behalf of OI concerning the Goods.
Fair Trading Act and Consumer Guarantees Act:
15.1 You will not do or omit anything which gives rise to any liability on your part or on the part of OI under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.
15.2 You will not make any representation or give any guarantee, warranty or other undertaking in relation to the Goods or any services provided in connection with the Goods to customers other than as shown on packaging or labels, or in Product Material or as otherwise authorised in writing by OI.
15.3 You shall not hold yourself out as an employee, agent or representative of OI to any person.
15.4 You acknowledge that any Goods you acquire will be for business purposes and that, accordingly, this is not a consumer contract under the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 are excluded.
Exclusion of liability: To the maximum extent permitted by law OI shall not be liable to you or any third parties for any loss, damage, expenses, injury or consequential, indirect or special loss, loss of profits or loss of opportunity arising directly or indirectly from the supply of Goods to you any cancellation of any Contract or other agreement OI has with you; any late or non-delivery of Goods.
Your liability: You covenant and agree with OI that you assume sole and entire responsibility for, and indemnify OI against, any and all claims, liabilities, losses, expenses, responsibilities and damages by reason of any claim, proceedings, action, liability or injury arising out of or as a result of:
17.1 a breach of the Trade Terms by you or by any person for whom you are responsible; or
17.2 any wilful, negligent or unlawful act or omission by you or any person for whom you are responsible.
Implied warranties excluded: If:
18.1 any condition or warranty is implied into the Trade Terms under any trade practices, sale of goods, fair trading or other applicable legislation and cannot be excluded; or
18.2 notwithstanding the other provisions of this clause 18, OI has any liability to you,then to the fullest extent permitted by law the liability of OI for claims by you for breach of the condition or warranty so implied or otherwise will be limited, at the option of OI, to the replacement of such defective Goods or a refund of, or credit for, the Contract price of such Goods.
Your default: Without prejudice to its right not to supply or not to continue to supply any Goods, for any reason or no reason, OI may suspend or terminate any Contract of supply under any Contract, and payment for Goods delivered and work performed up to the date of suspension or termination and any other moneys payable under the Trade Terms shall immediately become due and payable, if you:
19.1 fail to pay any moneys due to OI;
19.2 fail to perform any of your obligations to OI under, or otherwise breach, the Trade Terms or any other Contract with OI;
19.3 are unable to pay your debts as they fall due or cease or threaten to cease conducting your business in the normal manner;
19.4 enter into, or attempt to enter into, any composition, assignment or other arrangement with, or for the benefit of, your creditors;
19.5 become, threaten or resolve to become, or are in jeopardy of becoming insolvent;
19.6 being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving; or
19.7 being a natural person, die.
Clauses to survive: Clauses 14, 15, 16, 17, 18, 19, 20, and 22 shall survive the termination or expiration of any Contract.
Force Majeure: Neither party shall be liable for any delay or failure to perform any obligation (other than for payment) under the Trade Terms or for any loss or damage (including indirect or consequential loss or damage) if such delay or failure is due to Force Majeure (as that term is commonly understood).
22.1 Conflicting Terms: If there is any conflict between an Order or other document submitted by you on the one hand, and the Trade Terms and/or any other document issued by OI on the other hand, the Trade Terms and/or such other document issued by OI shall prevail unless specifically agreed otherwise by reference to these TradeTerms under clause
22.3. If there is any conflict between any parts of the Contract, these Terms of Trade shall prevail unless specifically agreed otherwise by reference to these Trade Terms under clause 22.3.
22.2 Credit Enquiries: You authorise OI to make any enquires relative to your trading history or creditworthiness which it may consider necessary from time to time, and for that purpose to disclose to and seek from any party whatsoever any information OI requires in relation to extending credit to you.
22.3 Variation: Any agreement which does not conform to the Trade Terms shall not be binding on OI unless it has been confirmed by OI in writing.
22.4 Privacy: You:
22.4.1 request and authorise the parties
22.4.2 agree that any other information
22.4.3 acknowledge (if you are an individual) referred to in clause
22.2 to supply the information referred to in that clause to OI;collected by OI about you or your customers is accessed or collected and authorised for the use of OI in the course of its business, including direct marketing activities; and that all information provided by you will be held by OI subject to your right to access to and correction of such information provided by the Privacy Act 1993.
22.5 Assignment: OI may assign any Contract or any of its rights, duties or obligations under any Contract at any time but you may not without OI’s written consent.
22.6 Intellectual property:
22.6.1 You acknowledge that neither you nor anyone you are responsible for has, or will acquire, any right, title or interest in OI's intellectual property (including any intellectual property in the Goods), and neither the Trade Terms nor your use of OI's intellectual property transfers any title or ownership in any of the same to you. Intellectual property in these Trade Terms includes Product Materials, confidential information, know how, look and feel, copyright, trade marks, brands, logos, and all material included on or in packaging supplied with the Goods)
22.6.2 You agree that you will not remove, alter or obscure any label on the Goods or alter the Goods in any way or do likewise with respect to any Product Materials.
22.7 Notices: Any notice under a Contract may be given by hand, post or email to the last known address of the intended recipient. Notices by post will be deemed received 3 days after posting. Notices by email will be deemed received in accordance with the Electronic Transactions Act 2002. Notices may also be delivered via OI’s website and will be deemed delivered when accessed.
22.8 Entire Agreement: The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous understandings, arrangements, agreements and communications.
22.9 Authority: The person signing or otherwise agreeing to these Trade Terms confirms that they are authorised to bind the company or firm that they have indicated as a party (“you” for the purposes of these Trade Terms).