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terms of trade

Being Australian Pty Ltd ACN 077 264 656

1. Definitions

"Being Australian" means Being Australian Pty Ltd ACN 077 264 656, its successors and assigns;
"Agreement" means the agreement between Being Australian and the Customer consisting of these Conditions and any terms agreed in writing by the parties;
"Conditions" means the terms and conditions contained in this document and includes those terms, if any, imposed by law that cannot be excluded;
"Customer" means the entity with whom Being Australian contracts to supply the Goods;
"Delivery" means delivery of the Goods to the Customer or to the Customer’s common carrier;
"Goods" means goods sold by Being Australian pursuant to the Agreement; and
"GST" means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time or any replacement or other relevant legislation and regulations.

2. General

The Agreement is the entire agreement between Being Australian and the Customer for the supply of Goods to the Customer.
Any variation to the Agreement must be made by Being Australian in writing and notified to the Customer.
These Conditions replace any terms or conditions contained in any document issued or referred to by the Customer.
The Agreement does not create or evidence an agency, partnership, joint venture, or the relationship of employer and employee.
If anything in the Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
The law of New South Wales governs the Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia.

3. Prices

The price payable by the Customer for the Goods is the net price of the Goods only as quoted, advertised or indicated by Being Australian on the date the Goods are despatched (“Price”).
Freight to the Customer is payable by the Customer in addition to the Price, where applicable.
Unless GST is expressly included, the price payable for any supply made under or in connection with the Agreement does not include GST.

4. Orders

Being Australian reserves the right to accept or reject at any time in its absolute discretion any orders placed by the Customer, including the right to accept part of any order or any order on conditions.
Any quotation issued by Being Australian is not an offer or obligation to sell but an invitation to treat only.

5. Payment

The Customer must pay for the Goods within the period specified by Being Australian in writing or otherwise by the end of the calendar month following the date of Being Australian’s invoice to the Customer (“Specified Period”).
Any payment not made within the Specified Period will attract interest until the time of payment. Interest accrues daily.
Being Australian reserves the right to suspend delivery of other goods and to take legal action to recover any payment not received within the Specified Period. The Customer will be liable for all costs, including legal costs and mercantile agents fees, incurred by Being Australian in recovering any payment outstanding.

6. Delivery

Being Australian will make every effort to effect Delivery in the shortest possible time.
Any statement made by Being Australian as to the date for Delivery is an estimate only.
Being Australian will have no liability whatsoever (including liability for negligence) for any loss or damage consequential or otherwise if Delivery is not effected or Delivery is delayed.

7. Acceptance and Return

For the purposes of this clause 7, “notice” means delivery to Being Australian of a CREDIT, WARRANTY OR REPAIR REQUEST form that has been completed by the Customer in writing, quotes Being Australian’s invoice number, states the nature of the problem with the Goods to be returned and lists the Goods to be returned.
The Customer must inspect the Goods upon Delivery.
The Customer must give Being Australian notice within 7 days of Delivery of:

(7.3.1) wrong Goods delivered; or
(7.3.2) the Delivery being after any cancellation date stated in writing on the Customer’s order.

Subject to clause 7.3, the Customer must give Being Australian notice at any time after Delivery of any other matter or thing relating to the Goods that the Customer alleges is not in accordance with the Agreement.
Being Australian may authorise returns of Goods upon notice by issuing the Customer with a Return Authorisation.
Being Australian will only accept returns of Goods that are un-used and are accompanied by a CREDIT, WARRANTY OR REPAIR REQUEST form and corresponding Return Authorisation.
The Customer must wrap and pack the Goods to be returned to avoid any damage in return transit.
Being Australian is not liable for return freight.

8. Guarantees and Warranties

Subject to clauses 8.2 and 8.2 and to the extent permitted by law, all other conditions, warranties, liabilities or representations in relation to the Goods are excluded.
Being Australian warrants the Goods in accordance with the provisions of any written warranty issued by Being Australian in respect of such Goods. Any such warranty is in addition to and in no way limits, varies or excludes any statutory or implied conditions and warranties.
Where legislation implies in these Conditions any condition or warranty that cannot be excluded or modified, the condition or warranty is deemed to be included in these Conditions. However, to the extent permitted by law, the liability of Being Australian for a breach of any such condition or warranty is limited at Being Australian’s option to any one or more of the following:
- the replacement of the Goods or the supply of equivalent goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- the payment of the cost of having the Goods repaired; and
- in the case of advice, recommendations, information or services, by supplying the advice, recommendations, information or services again.
If the Customer re-sells the Goods, the Customer must ensure that all labels and markings attached to the Goods by Being Australian remain attached for the purposes of re-sale. The Customer is not entitled to make any other representation or warranty to any person on behalf of Being Australian.
Being Australian guarantees apply only to domestic use of products.

9. Risk and Title

Risk in the Goods passes to the Customer immediately upon Delivery.
Property in the Goods will not pass to the Customer until payment for all goods supplied by Being Australian to the Customer have been paid for in full. Until the Customer has paid for all goods supplied by Being Australian to the Customer in full:
- (9.2.1) the Customer may only sell the Goods as Being Australian's fiduciary agent for the account of Being Australian and the proceeds of such sale (including any proceeds from insurance claims) will be the property of Being Australian to be held by the Customer for and on behalf of Being Australian in a separate bank account;
- (9.2.2) the Customer must store the Goods in a proper manner that clearly identifies the Goods as the property of Being Australian;
- (9.2.3) the Customer must notify Being Australian in writing of any intended sale of the Customer's business that purports to include the Goods as part of the Customer's stock; and
the Customer must not bail, pledge, mortgage, charge, grant a lien over, lease or assign the Goods, other than in accordance with clause 9.2(1).
The Customer irrevocably authorises Being Australian at any time to enter any premises upon which Goods the subject of this clause are stored to enable Being Australian to inspect the Goods and, if the Customer has breached the Agreement, reclaim possession of the Goods.
The Customer acknowledges and agrees that Being Australian may recover the price of the Goods by legal action if the Goods are not paid for within the Specified Period, notwithstanding that property in the Goods has not passed to the Customer.

10. Privacy

Where the Goods are supplied to the Customer on credit the Customer irrevocably authorises Being Australian, its employees or agents to make such enquiries necessary to investigate the creditworthiness of the Customer including (but not limited to) making enquiries of the Customer’s trade referees, bankers and credit providers (“Information Sources”) and the Customer authorises such Information Sources to disclose to Being Australian such information in their possession concerning the Customer that is requested by Being Australian.
For the purposes of the Privacy Act 1988, where the Customer is an individual, Being Australian declares that it collects information about the Customer to assist in promoting and selling its products and services. Being Australian does not disclose information about the Customer to any person except as required in the course of providing its products or services for the ordinary administration of its business. If the Customer does not want to receive promotional material from Being Australian, he or she can inform Being Australian. The Customer can also request access to his or her personal information by making a written request to Being Australian.