Skin O2 (Star Dermaceutical Pty ATF Dermaceutical Trust) Terms and Conditions
1.1 “Supplier” shall mean Star Dermaceutical Pty ATF Dermaceutical Trust, its successors and assigns or any person acting on behalf of and with the authority of Star Dermaceutical Pty ATF Dermaceutical Trust.
1.2 "Buyer" shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by the Supplier to the Buyer.
1.3 "Guarantor" means that person (or persons) who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4 "Goods" shall mean all Goods supplied by the Supplier to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Supplier to the Buyer.
1.5 "Services" shall mean all Services supplied by the Supplier to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 "Price" shall mean the Price payable for the Goods as agreed between the Supplier and the Buyer in accordance with clause 4.2 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Buyer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer's statutory rights.
3.1 Any instructions received by the Supplier from the Buyer for the supply of Goods and/or the Buyer's acceptance of Goods supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be amended with the written consent of the Supplier.
3.4 The Buyer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any change in the Buyer's name and/or any other change in the Buyer's details (including but not limited to, changes in the Buyer's address, facsimile number, or business practice). The Buyer shall be liable for any loss incurred by the Supplier as a result of the Buyer's failure to comply with this clause.
3.5 Goods are supplied by the Supplier only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Buyer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At the Supplier’s sole discretion the Price shall be either: (a) as indicated on invoices provided by the Supplier to the Buyer in respect of Goods supplied; or (b) the Supplier’s current Price at the date of delivery of the Goods according to the Supplier’s current pricelist.
4.2 The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s pricelist or from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of unforeseen circumstances, increases to the Supplier in the cost of materials and labour, or fluctuations in currency exchange rates) will be charged for on the basis of the Supplier’s Price and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Supplier’s sole discretion a non-refundable deposit may be required.
4.4 At the Supplier’s sole discretion payment shall be due on, or before, delivery of the Goods.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due shall be due thirty (30) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to 2.5% of the Price), or by direct credit, or by any other method as agreed to between the Buyer and the Supplier.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At the Supplier's sole discretion delivery of the Goods shall take place when: (a) the Buyer takes possession of the Goods at the Supplier's address; or (b) the Buyer takes possession of the Goods at the Buyer's nominated address (in the event that the Goods are delivered by the Supplier or the Supplier's nominated carrier).
5.2 At the Supplier's sole discretion the costs of delivery are: (a) included in the Price; or (b) in addition to the Price.
5.3 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.4 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated. 5.6 The Supplier shall not be liable for any loss or damage whatsoever due to failure by the Supplier to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Supplier.
6.1 If the Supplier retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 Where the Buyer expressly requests the Supplier to leave Goods outside the Supplier's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer's sole risk and it shall be the Buyer's responsibility to ensure the Goods are insured adequately or at all.
7.1 The Supplier and the Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Supplier all amounts owing for the particular Goods; and
(b) the Buyer has met all other obligations due by the Buyer to the Supplier in respect of all contracts between the Supplier and the Buyer.
7.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier's ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Supplier shall have received payment and all other obligations of the Buyer are met; and
(b) until such time as ownership of the Goods shall pass from the Supplier to the Buyer the Supplier may give notice in writing to the Buyer to return the Goods or any of them to the Supplier. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Supplier shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Buyer fails to return the Goods to the Supplier then the Supplier or the Supplier's agent may (as the invitee of the Buyer) enter upon and into land and premises owned, occupied or used by the Buyer, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Buyer is only a bailee of the Goods and until such time as the Supplier has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Buyer owes to the Supplier for the Goods, on trust for the Supplier; and
(f) the Buyer shall not deal with the money of the Supplier in any way which may be adverse to the Supplier; and
(g) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Supplier; and
(h) the Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and
(i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Supplier will be the owner of the end products
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Buyer and the Supplier by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by the Supplier to the Buyer (if any);
(ii) all Goods that will be supplied in the future by the Supplier to the Buyer.
8.3 The Buyer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier; and
(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 The Supplier and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Buyer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Buyer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by the Supplier, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Buyer shall unconditionally ratify any actions taken by the Supplier under clauses 8.3 to 8.5.
9. Security and Charge
9.1 Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Supplier from and against all the Supplier's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Supplier or the Supplier's nominee as the Buyer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.
10.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Buyer is entitled to reject, the Supplier's liability is limited to either (at the Supplier's discretion) replacing the Goods or repairing the Goods except where the Buyer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
11.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 10.1; and
(b) the Supplier has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Buyer's cost within seven (7) days of the delivery date; and
(d) the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 The Supplier may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
11.3 Non-stocklist items or Goods made to the Buyer's specifications are under no circumstances acceptable for credit or return.
12.1 To the extent permitted by statute, no warranty is given by the Supplier as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
13. Intellectual Property
13.1 Where the Supplier has designed, drawn or written Goods for the Buyer, then the copyright in those designs and drawings and documents shall remain vested in the Supplier, and shall only be used by the Buyer at the Supplier's discretion.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Buyer's payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Supplier.
14.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis and the Supplier's collection agency costs.
14.4 Without prejudice to any other remedies the Supplier may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) the Supplier may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Buyer for any loss or damage the Buyer suffers because the Supplier has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of four hundred dollars ($400.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to the Supplier's other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Supplier becomes overdue, or in the Supplier's opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
15.1 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Supplier shall repay to the Buyer any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Buyer's specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s (herein referred to as the Buyer) agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by the Supplier.
16.2 The Buyer agrees that the Supplier may exchange information about the Buyer with those credit providers either named as trade referees by the Buyer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Buyer; and/or
(b) to notify other credit providers of a default by the Buyer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Buyer. The Buyer understands that the information exchanged can include anything about the Buyer's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Buyer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other purposes as shall be agreed between the Buyer and Supplier or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by the Supplier, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Buyer's credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
(e) enabling the daily operation of Buyer's account and/or the collection of amounts outstanding in the Buyer's account in relation to the Goods.
16.5 The Supplier may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Buyer's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number;
(b) details concerning the Buyer's application for credit or commercial credit and the amount requested;
(c) advice that the Supplier is a current credit provider to the Buyer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Buyer's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Supplier, the Buyer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Buyers credit obligations);
(g) advice that cheques drawn by the Buyer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Buyer by the Supplier has been paid or otherwise discharged.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
17.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
17.4 The Supplier shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Supplier of these terms and conditions.
17.5 In the event of any breach of this contract by the Supplier the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.6 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
17.7 The Buyer agrees that the Supplier may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Buyer of such change. The Buyer shall be under no obligation to accept such changes except where the Supplier supplies further Goods to the Buyer and the Buyer accepts such Goods.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier's right to subsequently enforce that provision.