INDEX GROUP OF COMPANIES PTY LTD

TERMS AND CONDITIONS OF SALE

1. INTERPRETATION in these conditions:
1.1 “Seller” means INDEX GROUP OF COMPANIES PTY LTD.
1.2 “Buyer” means the customer who places the order for goods or services.
1.3 “Goods or services” means the goods or services ordered which will be specified in the Seller’s invoice.

2. GENERAL
2.1 These conditions (which can only be waived in writing signed by the Seller) prevail over all conditions of the Buyers order to the extent of any inconsistency. In the absence of the written waiver, no other terms and conditions will apply.
2.2 All rights and remedies of the Seller under these terms and conditions are in addition to the Seller’s other rights and remedies and are cumulative not alternative.
2.3 The goods or services and any other goods or services sold or supplied by the Seller to the Buyer are sold on these Terms and Conditions.

3. SALE OF CONSIGNMENT GOODS
3.1 Some goods sold to the Buyer by the Seller may be held by the Seller on consignment. In such cases, a third party (“the Vendor”) is the owner of the goods. The Seller has no property in the goods.
3.2 In the case of the sale of consignment goods, the Buyer acknowledges that the Seller has made no representations and not given any warranties (written or oral) in respect of such goods including as to their suitability and/or condition. All representations or references to condition or suitability of goods sold on consignment are made by the Vendor and this is acknowledged by the Buyer.
3.3 The Seller gives no warranties, either express or implied as to merchantability, fitness for a particular purpose or in any other matter in connection with any goods sold on consignment. Any warranties provided by the Vendor to the Seller are transferred to the Buyer and the Buyer acknowledges and agrees that the Seller has no further liability.

4. QUOTATION AND PRICE
4.1 Quotations provided by the Seller are not offers. They are invitations to a Buyer to make an offer. The Buyer’s order is an offer to the Seller.
4.2 The Seller is not required to supply any goods referred to in a quotation. The Seller may sell the goods to any other party prior to the Seller accepting the Buyer’s offer.
4.3 All prices set out in the quotation are valid for fourteen days only from the date of the quotation, unless the Seller otherwise specifies. The Seller may change the price after that period.
4.4 Quoted prices do not include charges in connection with insurance, packing, crating, storage, demurrage, delivery (by whatever means including road, rail or air) and export of the goods and any sales tax, excise, goods and services tax or other taxes or duties, unless the Seller otherwise specifies in the quotation. It is the responsibility of the Buyer to furnish to the Seller all documents lawfully required to be provided in order to claim any exemption from duty or tax.

5. ORDERS PLACED BY THE BUYER
5.1 An order placed by a Buyer is an offer. The Seller is not bound to accept an offer made by the Buyer.
5.2 Once the Seller accepts an order, the order cannot be altered without the Seller’s written consent.
5.3 If any goods are ex-import, any order accepted by the Seller is subject to the Seller being granted all necessary authorisations and licences and these remaining valid.
5.4 If the Buyer cancels an order after acceptance by the Seller, the Buyer is to pay to the Seller all amounts in respect of all loss, damage, expenses and costs of whatever nature incurred by the Seller in relation to the goods or services. Otherwise, the Seller fully reserves its legal rights.
5.5 At any time prior to delivery of the goods or provision of the services, the Seller may decline to provide any order, by written notice to the Buyer, in whole or part, without giving any reason. In that case, the Seller is under no obligation in respect of the order and the Buyer has no claim against the Seller in that regard.
5.6 The Buyer is to make payment to the Seller prior to dispatch of the goods or provision of the services, unless the Seller waives this requirement in writing.
5.7 Any failure by the Buyer to comply with these terms or conditions or with the requirements as to payment entitles the Seller to withhold delivery of goods or provision of services pursuant to any order which the Buyer has with the Seller until payment is made. Alternatively, the Seller can terminate any agreement it has for the supply of goods or services and, upon this happening, all money unpaid under any agreement with the Buyer will become immediately due and payable.
5.8 The Buyer is to pay interest on the daily balances of overdue amounts, from the date due for payment until paid at the rate of two percent (2%) per annum over the overdraft rate quoted to the Seller by its bankers.
5.9 If by terms of sale credit is extended to the Buyer the Seller reserves the right to revoke that credit if the Buyer fails to pay the Seller for any goods or services when due. The Seller then has the right to demand payment in full for all goods and services and is not obliged to provide any further goods or services until payment is made. Alternatively, the Seller can terminate all agreements with the Buyer, upon which the full amount unpaid by the Buyer to the Seller becomes immediately due and payable.
5.10 The following rights apply (in addition to any existing rights) if the Buyer makes default in payment, makes any assignment or enters into any arrangement for the benefit of creditors, commits an act of insolvency, is unable to pay its debts as and when they fall due, has a receiver, administrator, liquidator or trustee in bankruptcy appointed or if proceedings are commenced by or against the Buyer concerning or alleging insolvency or the appointment of a receiver. In addition to any other rights which the Seller has, it may cease provision of all further goods and services to the Buyer without being subject to any liability to the Buyer or its trustees, administrators or assigns. Alternatively it may terminate any agreement with the Buyer in whole or in part by notice in writing to the Buyer.

6. FORCE MAJEURE
6.1 The Seller can cancel the contract, extend the date of delivery or suspend indefinitely the date for delivery of any goods or services to be supplied to the Buyer upon the happening of a Force Majeure. The Seller is not liable for any delay or failure to perform its obligations resulting from a Force Majeure. The Seller is not liable for any loss, expenses, damages or costs suffered or incurred by or occasioned to the Buyer inclusive of any consequential damage including loss of profit resulting from the Seller exercising its rights under this clause.
6.2 Force Majeure includes but is not limited to Acts of God, changes in the law, rules, regulations and orders by any Government or Government instrumentality or agency, or changes in the legal position effecting the contract, acts of war or conditions arising out of or attributable to war (declared or undeclared), any strikes, walkouts, lockouts, or other labour or industrial disturbances, delays in transportation, cancellation of any expected event or happening, unavoidable accident, floods, storms and other natural disturbances, fire, insurrection, riots, and other civil disturbances, requisitioning, Government or Parliamentary restrictions, import or export regulations, trade disputes, difficulty in obtaining workmen or materials, breakdown of machinery, and any matter whatsoever which is beyond the control of the Seller, whether or not similar to those set out in this clause.

7. TITLE AND RISK
7.1 Risk in the goods passes to the Buyer upon the earlier of:
a. actual or constructive delivery of the goods to the Buyer; or
b. collection of the goods from the Seller or any bailee or agent of the Seller by the Buyer’s agent, carrier or courier; or
c. the point of commencement of transit of the goods to the Buyer.
7.2 However, the Seller retains full title to the goods until payment in full is received.
7.3 The Buyer is a bailee of the goods until such time as property in them passes to the Buyer. This bailment continues in relation to each of the goods until the price of the goods has been paid in full.
7.4 Pending payment in full on all accounts owed by the Buyer to the Seller, the Buyer:
a. must not allow any person to have or acquire any security interest in the goods;
b. must insure the goods for the full insurable or replacement value (whichever is the higher);
c. must not remove, deface or obliterate any identifying plate, mark or number on any of the goods;
d. has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation;
e. cannot claim any lien over the goods;
f. will not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorised by the Seller.
7.5 Where the Buyer is in actual or constructive possession of the goods, it will not deliver them or any document of title to the goods to any person except as directed by the Seller and, being in possession of the goods as bailee, owes to the Seller the duties and the liabilities of a bailee.
7.6 If, despite the terms of this agreement, the Buyer supplies any of the goods, whether in the form delivered by the Seller or in any other form, to any person before all monies payable have been paid to the Seller, the Buyer agrees that:
a. it holds the full proceeds of re-supply of the goods (in whatever form they have been re-supplied) on trust for, and as agents for, the Seller immediately when those proceeds are received or receivable;
b. it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or financial institution as trustee for the Seller;
c. any accessory or item which becomes or forms part of any of the goods as a result of any act of the Buyer of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the monies are paid in full, whereupon property in the goods (including the accessory or item) passes to the Buyer;
d. it will not assign, factor or otherwise deal with any book debt or chose in action arising in its favour in respect of such re-supply, with any such book debt or chose in action being held on trust by the Buyer for the Seller;
e. the proceeds of re-supply include any amounts received or receivable under any agreement for re-supply entered into by the Buyer at any time including before this agreement.
7.7 If the Buyer fails to pay for the goods in compliance with this agreement, the Seller may recover possession of the goods by entering any site in the ownership, possession or control of the Buyer (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and subsequently retake possession of the goods. The Buyer agrees that the Seller has an irrevocable licence to do so.
7.8 If delivery of the goods is made prior to full payment, the Buyer shall store the goods in a place nominated by the Seller in a way which acknowledges the Seller’s continued title in the goods.
7.9 The Buyer shall not resell the goods prior to full payment without first signing an irrevocable authority in the Seller’s favour that the sale proceeds shall be paid direct to the Seller. The Seller is to remit to the Buyer any balance monies from the sale proceeds left after all the Buyer’s debts to the Seller are paid in full. The Seller may, alternatively, direct that the balance monies be paid to the Buyer after calculation of the debt owing to the Seller.
7.10 Upon the Seller receiving the amounts owing to it the Buyer’s obligations are discharged.

8. INSTALMENTS
8.1 The Seller has the right to deliver the goods in instalments. All instalments are to be separately invoiced and paid as billed without regard to subsequent deliveries. Failure by the Buyer to pay for an instalment when due entitles the Seller to refuse to make any further or future deliveries without any liability whatsoever to the Buyer.

9. VARIATIONS
9.1 Quoted prices may vary as a result of a number of factors including changes in the cost of materials, labour, fuel, transport, government charges and any overheads. Quoted prices may be varied by the Seller and that variation is deemed to have been accepted by the Buyer provided that the variation occurs at any time prior to the Seller accepting the order.
9.2 Unless otherwise stated, all prices quoted by the Seller are net, exclusive of GST.

10. INSPECTIONS ETC
10.1 The Seller may charge an additional amount for any extra goods ordered and not specified in the quotation. It may also charge an additional amount for the expense of any inspection, test, alteration or addition and any other work performed at the Buyer’s request.
10.2 No order for extras nor arrangements for inspections, tests, alterations, additions or other work is binding on the Seller unless requested in writing by the Buyer and accepted in writing by the Seller.
10.3 It is the Buyer’s responsibility to inspect any item it wishes to purchase. The Buyer acknowledges that a full inspection of the goods has taken place prior to the parties entering into this contract. The Buyer must given written notice to the Seller of any defect or claim within seven days of inspection. Failure to provide the notice is evidence that there is no defect and that the Buyer has no claim arising from the inspection.
10.4 Inspection of the goods, unless agreed otherwise in writing, shall take place by the Buyer or its agents at the premises of the Seller.

11. DESCRIPTION AND ILLUSTRATIONS
11.1 The Seller is not responsible for any error or omission in or regarding any drawings, specifications, descriptions, weights, dimensions or photographs. These are approximate only or intended solely as a general guide. They do not form part of the terms and conditions of sale or the description applied to the goods and are agreed not to be binding in detail. Where drawings or specifications are provided or approved by the Buyer, the Seller is not liable for any error, omission or inaccuracy in connection with the drawings or specifications. The Seller is under no obligation to check or confirm the conformity, accuracy or adequacy of patents, drawings or specifications provided by the Buyer.
11.2 Where the goods are supplied to the Buyer’s specification, the Seller warrants the goods will conform to the specifications. In such as case, the Seller is only liable for repair or replacement, at the Seller’s option. Such repair or replacement is the sole and exclusive remedy of the Buyer.

12. WARRANTIES
12.1 These terms and conditions cannot (except to a limited extent) exclude, restrict or modify provisions of Australian law which from time to time imply conditions, warranties or obligations on the Seller. For instance, if any goods or services are supplied to the Buyer as a “consumer” within the meaning of that term in the Trade Practices Act or similar State legislation, the Buyer has the benefit or certain non-excludable rights and any such remedies.
12.2 Apart from the conditions, warranties and obligations mentioned in the previous paragraph, the Seller makes no warranties (expressed or implied) as to merchantability, fitness for a particular purpose or otherwise with respect to the goods or services other than that in respect of conformity to specifications or as implied by law and which may not be excluded, restricted or modified.
12.3 The Seller is not liable, under any circumstances, in contract, tort (including negligence) or otherwise for any loss of prospective profits or production, wasted overheads, or expenses or special, indirect or consequential damages, or for machine work, labour charges, or any expense resulting from use by the Buyer of defective goods or services or the inability to use the good or services.
12.4 The Seller’s liability for a breach of a condition or warranty including any implied either by Div 2 of Pt V of the Trade Practices Act 1974 (other than s. 69) or any relevant State law is limited to:
a. in the case of goods, any one or more of the following:
   i. the replacement of the goods or the supply of equivalent goods;
   ii. the repair of the goods;
   iii. the payment of the cost of replacing the goods or of acquiring equivalent goods;
   iv. the payment of the cost of having the goods repaired; or
b. in the case of services:
   i. the supplying of the services again; or
   ii. the payment of the cost of having the services supplied again.
12.5 The Seller’s liability under either s. 74H of the Trade Practices Act 1975 or any relevant State law is expressly limited to a liability to pay to the Buyer an amount equal to:
a. the cost of replacing the goods;
b. the cost of obtaining equivalent goods; or
c. the cost of having the goods repaired, whichever is the lowest amount.
12.6 “Relevant State law” means a State law which corresponds to the relevant provisions of the Trade Practices Act and which contain corresponding permitted limitations in respect of those corresponding provisions.

13. SET OFF
13.1 The Seller is entitled to withhold any amount due from time to time to the Buyer on any account whatever until all amounts owing by the Buyer to the Seller have been paid in full and may appropriate any such amount to itself by way of set off against any monies owing by the Buyer to the Seller.

14. APPLICABLE LAW AND JURISDICTION
14.1 Transactions between the Buyer and the Seller are governed by the law of the State of Queensland and the Buyer and Seller agree that all disputes are to be submitted to the exclusive jurisdiction of the Courts of that State.

15. SEVERANCE
15.1 If any of these terms and conditions shall be determined to be invalid, unlawful or unenforceable for any reason whatsoever, such invalidity or unenforceability or illegality will not effect the operation, construction or interpretation of any other provision of this contract and the invalid or unenforceable or illegal provision will be treated for all purposes as separate from this contract.

16. WORKPLACE HEALTH AND SAFETY WARNING
16.1 It is the Buyer’s responsibility to ensure the goods purchased by the Buyer are made to comply with Workplace Health and Safety laws applicable to the place where the goods are used and that the goods are fit for use in that workplace. Because of the nature of the goods supplied, it is impossible in most cases to supply information such as manuals in connection with the use of the goods. This is especially the case when goods are supplied on consignment. The Seller may supply manuals and instructions which it has. The Buyer should obtain copies of the manufacturer’s instructions and any other records or information available in connection with the use of the goods. The Buyer must check with the manufacturer that any information it has in connection with the use of the goods is correct and relevant to the goods supplied.
16.2 The Buyer is responsible to ensure that the start up of the goods conforms to the manufacturer’s requirements and is liable for all loss and damage consequent upon its failure to ascertain those requirements from the manufacturer or to comply with those requirements.