Terms and Conditions

Conditions of Contract DEV501

1. General
In these Terms and Conditions, the “Company” means Devcos International Pty. Ltd. ABN 971 06 775 259 and the “Client” means the addressee on the reverse hereof. These Terms and Conditions shall apply to and form part of any contact arising from the acknowledgement of the order of the Client and from any repeat or further orders for the same or similar goods whether generally or otherwise and not the subject of a further acknowledgement. The contract and these Terms and Conditions may only be varied or modified hereafter if expressly agreed to in writing by the Company.

2. Orders
(a) Any order placed by the Client is deemed to incorporate these Terms and Conditions notwithstanding any inconsistencies which may be introduced in the order of the Client unless the same are expressly agreed to in writing by the Company.
(b) The quotation by the Client either by its conduct or orally or in writing of an order number will constitute the placing of an order and the acceptance of these Terms and Conditions and the order once having been placed cannot be cancelled unless expressly agreed to in writing by the Company.

3. Price
The prices quoted are:-
(a) Subject to revision by the Company in the event of any variation (adverse to the Company only) in exchange rates duties primages freights insurance material labour carriage or other costs incurred by the Company after the receipt of any order such revised prices as notified to the Client on the invoice are thereafter binding on the parties;
(b) In the event of a contract payable in AUD any revision caused by an adverse movement in exchange rates from the AUD rate used such revision will be calculated on the basis the full contract price is deemed payable in the currency other than AUD that has been used for the contract price and the revised price will reflect the increase due to the exchange rate variation; and
(c) Exclusive of GST sales tax excise duty and all other governmental imposts of a like nature becoming payable because of the sale of the goods and the delivery thereof to the Client and all such taxes duties and other imposts shall accordingly be to the account of the Client.

4. Dispatch and Delivery
(a) Times quoted for dispatch or delivery are estimates only.
(b) The Company shall not be liable for failure to dispatch or deliver or delay in dispatch of delivery arising from any cause whatsoever.
(c) The Client shall not be relieved of any obligation to accept or pay for goods by reason of any delay in dispatch or delivery.
(d) The Company shall arrange for dispatch of the goods for delivery to the delivery address as stated on the reverse hereof or as notified by the Client to the Company within 7 days of the placement of the order.
(e) The Company reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure by the Company to deliver an instalment shall not entitle the Client to rescind or repudiate the contract.

5. Acceptance
(a) If the Client fails to give written notice pursuant to clause 15 herein the goods shall be deemed to be in all respects in accordance with the contract or order and the Client shall be deemed to have accepted same.
(b) The Client shall accept deliveries within 10% of the contract quantity provided that the Company shall invoice and the Client shall pay only for the actual quantity delivered.
(c) When delivery is to be made as and when required or when no date or dates are specified the Client shall accept delivery of the whole order within twelve calendar months from the date on the reverse hereof unless otherwise expressly agreed to in writing by the Company.
(d) If any stipulated date or period for dispatch has expired goods remaining in the care or control of the Company may be invoiced whereupon payment shall forthwith become due together with storage charges (including insurance) if applicable and the goods held at the risk of the Client.
(e) The first 2% of defects per delivery shall be to the account of the Client.

6. Payment
(a) The Client shall pay to the Company within seven days of the date of the invoice from the Company (or such time as otherwise notified by the Company to the Client in writing) the amount of the invoice unless otherwise expressly agreed to in writing by the Company.
(b) Default by the Client in payment of any invoice shall entitle the Company to treat any outstanding contracts with the Client as repudiated by the Client.
(c) The Company reserves the right without limiting any other right or remedy it may have either to terminate the contract or to suspend deliveries if the Client fails to pay for any one delivery on the due date.
(d) If in the absolute and unfettered discretion of the Company the financial status of the Client is or becomes unsatisfactory to the Company the Company reserves the right to require payment of the price in full in cash in advance or security for the price in respect of all future deliveries and for goods previously delivered.
(e) The Client shall pay interest on any overdue payments from the date the payments become overdue at the Benchmark Rate as published by National Australia Bank Limited from time to time plus 1.875%.

7. Returnable Packaging
All pallets returnable wooden packing cases skids drums and other re-usable articles provided by the Company for the purposes of delivery of the goods may be charged extra by the Company but a credit may be allowed in favour of the Client if such items are returned free of charge to the Company in good condition within twenty-eight days of dispatch from the Company and accepted by the Company.

8. Risk
From the time of dispatch of the goods or delivery to a carrier ex factory or warehouse the risk of any loss or damage to or deterioration of the goods and the new goods as that expression is defined in clause 9 herein from whatever cause arising shall be borne by the Client.

9. Property
Notwithstanding anything contained in clause 8 herein property ownership and title in the goods both legal and equitable shall remain with the Company until payment in full of the invoice value by the Client to the Company (each order being considered as a whole) or if a running account is kept with the Company until payment in full of the balance of the account by the Client to the Company and until such payment :-
(a) the Client shall store the goods in such a manner as to indicate that they are clearly the property of the Company;
(b) if the Client shall make new goods from the goods mix the goods with other goods or if the goods in any way whatsoever become constituents of or be converted into other goods (“the new goods”) as security for the payment of the price property ownership and title in the new goods whether finished or unfinished shall be deemed to have been transferred to the Company at the moment of the single operation or event by which the new goods are created and the Client shall thereafter hold the new goods for and on behalf of the Company and shall store the new goods in such a
manner as to indicate that they are clearly the property of the Company;
(c) at the unfettered discretion of the Company the Client may be permitted to sell the goods or the new goods as the case may be for and on behalf of the Company and upon receiving payment on such sale shall hold the proceeds thereof upon trust for the Company and shall forthwith transfer such sum on trust to the Company in reduction of the invoice value of the goods or the new goods as the case may be.

10. Description
Any description of goods contained in the contract is given by way of identification only and the use of such description shall not constitute the contract a sale by description.

11. Designs and Tools
(a) Any designs sketches proofs or other material of the Company are submitted to the Client in confidence and unless otherwise agreed in writing by the Company they and the copyright in them remain with the Company.
(b) Tools moulds dies printing plates screens negatives blocks engravings and samples provided by the Company remain the property of the Company whether or not a charge is made by the Company to the Client towards their cost.
(c) Any patterns moulds dies materials goods or other tooling supplied by the Client to the Company shall be and remain the property of the Client and will be kept and maintained in good order and condition by the Company provided that :
(i) the Company accepts no responsibility for any loss or damage arising thereto;
(ii) the same will not be maintained for the Client beyond three years from their most recent use for supply of the goods to the Client.

12. Other Conditions
(a) When goods not manufactured by the Company are contained in the contract the general conditions of sale between the manufacturer or supplier and the Company will be deemed incorporated in the contract so far as they are applicable and except in so far as they may be inconsistent herewith.
(b) The Client shall be responsible for any printed matter design shape or construction to the Client's specifications and shall indemnify the Company against any claims arising therefrom.

13. Warranties
(a) Subject to paragraph (b) hereof the Company makes no representation or warranty of any kind as to the merchantability fitness for any particular purpose or any matter with respect to the goods whether used alone or in conjunction with other substances.
(b) Any express or implied conditions statements or warranties statutory or otherwise in respect of the goods are hereby expressly excluded to the maximum extent permitted by law.

14. Patent and Trade Marks
(a) The Company makes no representation or warranty of any kind expressed or implied that the goods sold hereunder or the use of such goods or articles made therefrom either alone or in conjunction with other substances will not infringe any patent or trade mark rights.
(b) The Client shall forthwith notify the Company of any claim or suit involving the Client in which such infringement is alleged and if the Company considers itself to be affected it shall be entitled to completely control the defence or compromise of any such allegation or infringement the cost thereby incurred will be to the account of the Client.

15. Marketing
The company at its sole discretion can use the clients branding, designs and tools to promote and advertise the company. For the avoidance of doubt, this includes but is not limited to product imagery, stylised logos and writing.

16. Claims
(a) The Company shall not be responsible for any claims by the Client in conjunction with the goods whether in respect of short delivery delay unsuitability defective quality or any other cause whatsoever (and all such claims shall be deemed absolutely waived by the Client) unless the same are notified in writing by the Client to and received by the Company within seven days after the date or expected date of delivery.
(b) The liability of the Company for any and all loss or damage including interest and costs resulting from any cause whatsoever including alleged negligence shall in no event exceed AUD 2,000.00 or the contract price of the goods in respect of which the claim is made (which ever is the lesser amount) or at the election of the Company the cost of repair or replacement of such goods. Any damage in excess thereof shall be borne by the Client.
(c) All goods alleged to be defective or otherwise subject to a claim shall be returned to the Company if requested by the Company in writing and any expense associated with the return and storage thereof shall be to the account of the Client.

17. Liability
Except as expressly provided herein the Company is not liable to the Client or any person deriving benefit under the contract for any loss injury expense or damage of any kind whatsoever (including any economic or consequential loss injury expense or damage) however wherever and whenever occurring whether arising out of or in connection with the performance of the contract or the goods (including any patent or latent defect in them) or any other action matter statement or thing connected therewith or incidental thereto whether or not arising by negligence or under statute.

18. Indemnity
The Client shall indemnify the Company against:-
(a) all claims in respect of any loss or damage sustained by a third party howsoever caused in connection with the goods;
(b) all royalties or other such payments in respect of any patented or registered designs or other rights which may be claimed as a result of goods being made to any design or specifications supplied by the Client; and
(c) all claims expenses and costs in connection with any infringement or alleged infringement or any patent copyright or registered design trade mark trade name or other rights in the manufacture of such goods.

19. Force Majeure
(a) Where the Company is unable wholly or in part by reason of force majeure to carry out any of its obligations under the contract it may determine or vary the contract as it may deem necessary and the Client shall not in consequence thereof have any claim for damages.
(b) In the contract “force majeure” means:
(i) an Act of God war declared or undeclared blockade riot disturbance accident sabotage lightening fire earthquake storm flood or other elements explosion legislation regulations orders or action governmental or quasi-governmental restraint expropriation prohibition intervention direction or embargo scarcity inability to obtain unavailability or delay in availability of labour equipment materials supplies fuel power or transport inability or delay in obtaining governmental or quasi-governmental approvals consents permits licences authorities or allocations and any other cause whether of the kinds specifically enumerated above or otherwise which is not reasonably within the control of the Company; or
(ii) any strike lockout ban injunction or other interference or dispute with work or labour whether or not such event is within the reasonable control of the Company.

20. Lien
In addition to any right of lien to which the Company may be statute or otherwise be entitled the Company shall in the event of the insolvency suspected insolvency bankruptcy suspected bankruptcy or winding up of the Client be entitled to a general lien in respect of all property or goods belonging to the Client in the possession or control of the Company (although such goods or some of them may have been paid for) for the unpaid invoice value of any other goods sold and delivered to the Client by the Company under this or any other contract.

21. Liquidation Receivership or Bankruptcy
If the Client in the case of a Company enters into liquidation (whether compulsory or voluntary) receivership or otherwise compounds with its creditors or takes or suffers any similar action in consequence of a debt or in the case of a natural person or a partnership of natural persons the Client or any of the members of his firm becomes bankrupt or enters into any arrangement with his creditors or takes or suffers similar action in consequence of a debt the Company shall be at liberty;
(a) to cancel any order of the contract forthwith and the Client shall not in consequence thereof have any claim for damages; or
(b) to give any liquidator receiver or other person the option to carry out the order of the contract;
and the exercise of any of the rights granted to the Company under this clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Company.

22. Waiver
The failure by the Company to insist upon strict performance of any Term or Condition of the contract shall not be deemed a waiver thereof of any rights or remedies the Company may have and shall not be deemed a waiver of any subsequent or continuing breach of any Term or Condition.

23. Time
The time hereinbefore mentioned within which the Client is to pay for the goods shall be of the essence of the contract.

24. Assignment
(a) The Client shall not assign or transfer or purport to assign or transfer any of its rights under the contract or delegate its performance under the contract without the prior written consent of the Company.
(b) The Company may in its discretion without notification to the Client sub-contract the whole or any part of the production or supply of the goods hereby agreed to be sold.

25. Insurance
The Company shall not effect any insurance over the goods except upon express request in writing as to the risk or risks to be insured against and the value or values to be declared given in writing by the Client and all insurances effected by the Company shall be subject to the usual exceptions and terms and conditions of the open or general policies of the insurance company or underwriters accepting the risk. The Company in its absolute discretion may decline and or refuse to accept or act upon the said request. Should the insurers dispute their liability for any reason the Client shall have recourse against the insurers only and the Company shall not be under any responsibility or liability in relation thereto.

26. Severance
(a) If any provision of the contract is void or voidable by either party or unenforceable or illegal but would not be void or voidable or unenforceable or illegal as aforesaid if it were read down and it is capable of being read down it shall be read down accordingly.
(b) If notwithstanding paragraph (a) hereof any provision of the contract is still void or voidable or unenforceable or illegal :-
(i) if the provision would not be void or voidable or unenforceable or illegal as aforesaid if a word or those words (as the case may be) were omitted that word or those words are hereby severed; and
(ii) otherwise the whole provision is hereby severed – and the remainder of the contract has a full force and effect.

27. Interpretation
(a) In the contract unless the contrary intention appears :-
(i) “person” and words importing persons include bodies corporate;
(ii) words importing the singular include the plural and vice versa and words importing the masculine include the feminine and neuter;
(iii) a reference to any Act of Parliament or section thereof or schedule thereto shall be read as if the words “or any statutory modification or reenactment thereof or substitution therefor” were added to the reference;
(iv) where a phrase is given a particular meaning other parts of speech and
(v) “writing” includes typewriting printing lithography photography and other modes of representing or reproducing words in visible form; and “written” has a corresponding meaning.
(b) Each party includes its successors and permitted assigns.
(c) Any marginal notes or headings are included for convenience only and do not affect the interpretation of the contract.
(d) If any day appointed or specified by the contract for the payment of any money falls on a Saturday Sunday or a day appointed under the Bank Holidays Act 1958 as a holiday for the whole day the day so appointed or specified shall be deemed to be the day preceeding the day so appointed or specified which is not in turn a Saturday Sunday or a day so appointed as a holiday for the whole day.

28. Governing Law
The contract shall be deemed to have been entered into the State of Victoria Australia and shall take effect be governed by construed enforced and performed in accordance with the laws from time to time in force in that State. Any dispute action or other legal process alleged to have arisen out of or in connection with the contract howsoever arising shall first be subjected to a mediation between the CEO of each of the Company and the Client (and or their representative who is not a lawyer) before an independent mediator agreed by the parties and in default of such agreement appointed by the
President of the Victorian Bar Inc, and only in the event that the said mediation is unsuccessful in resolving the dispute in writing between the parties arising out of or in connection with the contract, then and only then may such dispute arising out of or in connection with the contract be instituted heard and determined only in the appropriate court or tribunal in the State of Victoria.