Terms of Purchase
These terms and conditions ('Conditions'), subject to any variations we agree to in writing, apply to the purchase of goods identified in the purchase order or email ('Order') by All About The Man Pty Ltd (ACN 643 239 758) ('we', 'us' or 'our') from the supplier identified in that Order ('you'). Any terms and conditions notified to us by you will apply only to the extent that we expressly accept them in writing. Your supply of the goods identified in the Order ('Goods') constitutes acknowledgment and acceptance of these Conditions.
You will be deemed to have accepted the Order, giving rise to a contract for the supply of the Goods subject to these Conditions, unless you reject within 24 hours of us sending. Where the Order purports to be made on or subject to terms and conditions other than these Conditions, you agree that such other terms and conditions are disregarded and form no part of these Conditions unless we agree otherwise in writing.
You acknowledge and agree that our liability to pay under these Conditions falls solely on the Order issued.
Warranties & liability
You warrant and agree in relation to the Goods that:
- you have title, free of all liens, charges, encumbrances, mortgages and other security interests whatsoever, and title will transfer to us in accordance with these Conditions;
- they are fit for the purpose for which they are ordinarily used or, if we have disclosed it, our purpose and are of merchantable quality;
- they conform with any technical specifications and performance specifications published by you in relation to them or implied by their proposed use;
- they conform entirely with their description in the Order;
- if you have provided a sample of the Goods, this is a contract for sale by sample as well as by description;
- they comply with all applicable laws; and
- they will be appropriately packed for transport to us so that they will not be damaged in transit.
In addition to our other rights, we are entitled to the rights provided under the Competition and Consumer Act 2010 (Cth) as if that Act applied to the supply of the Goods.
You indemnify us, and will keep us indemnified, in respect of all losses, costs, expenses and damage of any nature (including consequential loss) arising directly or indirectly as a result of any breach by you of these Conditions, and any claims by third parties for compensation for personal injury, loss or damage to property as a result of your act or omission. This applies notwithstanding anything in your trading terms which might otherwise exclude or limit such liability.
In connection with the supply of the Goods by you to us under these Conditions, you must:
- act in an ethical and socially responsible manner and adopt behaviours that are reasonably expected of companies of a similar size and nature to you; and
- ensure that all statements made by you to us, including notices, reports and other communications, accurately reflect the actual activities and transactions between us.
In addition to our rights above, you warrant that the Goods will be free from any defects, deficiencies or other faults in their design, workmanship and material from the date of acceptance by us for a period of 18 months (or such other period we agree in writing) ('Warranty Period').
You will repair any defects, deficiencies or other faults in the Goods which become apparent during the Warranty Period or promptly replace the Goods, if necessary, at no cost to us.
A fresh warranty for the same period commences in relation to any Goods repaired or replaced from the date of repair or replacement.
Price & payment
We will pay you the price specified in the Order (Price). The Price is inclusive of any sales tax and duty, but exclusive of GST. Except to the extent expressly provided in the Order or unless we agree otherwise in writing:
- we will pay no charges for packing or carriage of the Goods, expenses, duties, other taxes or imposts or any of your other costs; and
- you will not be entitled to adjust the Price due to fluctuations in exchange rates, material costs, taxes, duties or labour costs.
If, and to the extent that, the supply of the Goods is a taxable supply then, subject to our receipt of a valid tax invoice, in addition to and at the same time as we pay the Price we will pay any GST payable for the taxable supply.
All rebates, discounts or other reductions in the Price will be calculated on the GST exclusive price.
Any costs to be reimbursed or indemnified exclude any amount of GST for which an input tax credit can be claimed.
Expressions have the same meaning as given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Right of rejection
We may reject any of the Goods if you fail to comply with these Conditions, or they do not meet our specifications. Upon any such rejection:
- we will notify you of the rejection in writing and you must (at your cost) collect the rejected Goods;
- we have no obligation to pay for the rejected Goods; and
- you remain liable under these Conditions for any cost, loss, damage or liability suffered in relation to the rejected Goods or our rejection of them.
Our payment for the Goods, signing of a delivery docket or other acknowledgment of delivery does not prejudice our right of rejection.
The Goods must be delivered at the time and place specified in the Order or as we agree otherwise in writing.
We have no obligation to accept or pay for any Goods not delivered (applicable only when any Goods are not paid in full prior to delivery) in accordance with above, unless:
- the failure was caused by circumstances beyond your control; or
- we consent in writing to any change to the time or place of delivery.
You must advise us immediately in writing if:
- delivery is unlikely to take place on the due date; or
- there is a partial loss of, damage to, or defect in, any delivery of the Goods, and
you must take all necessary steps to avoid or minimise any delay and immediately replace any lost or damaged Goods or rectify any defect in the Goods at your cost, if we so require.
Passing of title & risk
Title to the Goods passes to us on delivery.
The Goods remain at your risk until they have passed our inspection and are fit for purpose to be sold online.
You warrant that the Goods supplied to us do not infringe any patent, trade mark, registered design, name, copyright or other protected right ('Intellectual Property') and that we will be free to use them without infringing any such Intellectual Property.
To the extent that any use of the Goods requires a licence of rights in Intellectual Property belonging to a third party, you must procure for us a perpetual, royalty-free, transferable licence to use that Intellectual Property in respect of our use of the Goods.
You must have, and must ensure that any sub-contractors have, public liability and workers' compensation insurance in amounts reasonably acceptable to us. We may require evidence of that insurance at any time.
We may, without penalty and prejudice to any of our other rights, cancel our Order immediately by written notice if you:
- breach these Conditions and fail to remedy the breach within 14 days of our notice of the breach to you;
- become bankrupt or insolvent, unable to pay your debts as they fall due or enter into or become subject to any form of insolvency administration;
- do anything which, in our reasonable opinion, has the potential to prejudice our reputation; or
- notify us of an anticipated delay in the delivery of the Goods and we consider the delay will significantly affect our business.
Termination will not affect any rights accrued prior to termination.
If a claim or dispute arises out of or in connection with these Conditions, whether during the term or after any termination, including any questions regarding the existence, validity, termination or performance by us or you ('Dispute'), we and you agree to appoint an authorised representative to attempt to resolve the matter by way of negotiation within 21 days of us first notifying you of the Dispute or vice versa.
If the Dispute is not resolved through direct negotiation between our and your authorised representative, we and you agree to participate in mediation.
The Dispute will be submitted to an independent mediator chosen by agreement between us and you, or failing agreement, chosen by the President or Acting President of the Institute of Arbitrators and Mediators of Australia. Such mediation is to be conducted in accordance with the relevant mediation processes.
Normal supply and payment of any Goods will be maintained except that we are not obliged to make payment for the particular Goods under Dispute unless we and you agree otherwise in writing.
The above does not apply if we or you seek urgent injunctive relief and if failure to obtain that relief may cause irreparable damage to us or you or we or you have the right to immediately terminate these Conditions and there is no genuine Dispute as to that right to terminate.
Defined expressions bear their defined meaning wherever used in these Conditions, unless the context requires otherwise.
If a party comprises two or more persons, these Conditions apply to those persons jointly and each of them individually.
You must not, without our consent in writing, assign any of your rights under these Conditions.
If any part of these Conditions is illegal or unenforceable, it will be severed from these Conditions and the remaining terms and conditions will continue in full force and effect.
We may set-off any amounts owed by us to you against any amounts owed by you to us on any account whatsoever.
Should any significant change in law or regulation (including the introduction of any form of emission or carbon trading scheme or emissions or carbon tax) occur during the term of these Conditions, you will not be entitled to increase the Price without agreement in writing, except to the extent such increase is not permitted by law.
Our confidential information may be used only for the supply of the Goods and you must keep our confidential information secret.
These Conditions are governed by the laws of the State of Victoria and you submit to the jurisdiction of the courts of the State of Victoria.