Jurox Pty Limited A.B.N. 56 000 932 230 (Jurox) hereby agrees with the Customer (Customer) that unless expressly amended in writing by Jurox these General Terms and Conditions (GT&C) comprise the sole terms and conditions of the contract between Jurox and the Customer (the Agreement) notwithstanding anything that may be implied or expressed to the contrary on the Customer’s Enquiries or orders and shall supersede all other conditions and agreements between the parties and shall without further notice apply to all future transactions between Jurox and the Customer whether or not these GT&C are delivered or executed in the course of such transactions.
1. DIMENSIONS, WEIGHTS AND MEASURES
All dimensions weights and quantities mentioned in catalogues, price lists and quotations are acknowledged by the Customer to be approximations only and the Customer should refer to the product label for guidance. Generally, an active constituent may vary by up to 5% at release time (time of manufacture).
To the extent permitted by law and subject to clauses 9 and 10:
(a) Other than the warranties expressly provided in these GT&C, all other conditions, warranties and guarantees implied or provided for by statute, common law or otherwise in relation to the goods (including without limiting the generality of the foregoing any implied or imposed warranty or guarantee that the goods are suitable or fit for any particular use or purpose) are hereby excluded, except for any warranties or guarantees which may not be excluded according to the applicable laws or regulations of a country which has proper jurisdiction;
(b) Any warranty provided under or in connection with these GT&C relate only to goods manufactured and supplied by Jurox. The parties agree that the warranty excludes:
(i) improper, abnormal use or mismanagement by the Customer;
(ii) use of the goods other than in accordance with the Material Safety Data Sheet or Technical Notes for the goods or any instructions or recommendations by Jurox;
(iii) use of the goods in a manner not reasonably contemplated by Jurox;
(iv) where the Customer causes the goods to become of unacceptable quality or fails to take reasonable steps to prevent them from becoming of unacceptable quality including without limitation failing to store the goods in accordance with Jurox’s recommendations;
(v) use of the goods in a manner contrary to the law;
(vi) defects in the goods where the relevant defect is due to the Customer’s failure to comply with any terms of this GT&C;
(vii) items otherwise subject to deterioration or consumption in normal service and no later than the shelf life or expiry date noted on the package of the goods; and
(viii) defects or failures in materials or faults in respect of goods or components manufactured by unrelated third parties where such materials, goods or components will be repaired or replaced only to the extent of the original supplier’s warranties;
(c) Unless otherwise stated by Jurox or agreed at the time of entering into the Contract with the Customer, Jurox expressly warrants as supplier and manufacturer of the goods, in addition to any guarantees applying in respect of the goods under the Competition and Consumer Act 2010 (Australian Consumer Law), that the goods will be free from defects in material or faults in manufacture until the expiry date of the goods as referred to on the label, subject to the Material Safety Data Sheet or Technical Notes for the goods and the exclusions contained in clause 2(b);
(d) To make a claim under clause 2(c), the Customer must return the unused portion of the goods to Jurox and specify the nature of the defect, breach or non-conformance of the goods on or before the expiry date. All such communications are to be directed to Customer Service;
(e) The Customer shall be responsible for all costs incurred (including any incidental costs) in packing and transporting defective goods to and from Jurox under clause 2(d);
(f) The provisions of clauses 2, 9 and 10 exhaustively describe and define the Customer’s rights and Jurox’s obligations and liabilities with respect to any breach of guarantee or warranty described or stated in this clause 2 and the rectification of defects and non-conformances in the goods and shall be to the exclusion of any other rights and remedies the Customer may otherwise have in respect of any breach of guarantee or warranty or any defect or non-conformance in the goods.
(a) Subject to clause 4(a) all prices are expressed in Australian currency and exclude the costs of delivery.
(b) The price(s) charged to the Customer, subject to clause (a), shall be the price(s) ruling as at the date of delivery. Any price indications or price lists are subject to alteration by Jurox to reflect price(s) ruling as at the date of delivery.
(c) If any statutory charge, duty or impost is levied in respect of the goods and which has not been allowed for by Jurox in calculating the price, then provided it has been levied after the date of the Contract the same shall be borne by the Customer, and the price shall be increased accordingly. The date of the Contract shall be the date upon which Jurox accepts the Customer’s order.
(d) All prices quoted for Jurox manufactured goods are exclusive of goods and services tax. For all invoiced items, goods and services tax shall be charged as a separate item in accordance with the applicable rate at the time the invoice is raised.
(e) Jurox reserves the right to require the Customer to pay to Jurox at any time prior to the delivery of the goods, such part or whole of the contract price as Jurox considers appropriate.
4. DELIVERY OF GOODS & ACCEPTANCE
(a) Jurox shall use all reasonable endeavours to provide the goods to the Customer at the agreed place of destination specified in the Contract during normal business hours.
(b) Subject to clause 4(d), for all orders to mainland Australia:
(i) which exceed $1,250.00 (GST inclusive), Jurox agrees to pay all costs of freight, delivery and unloading the goods (where delivered successfully on the first attempt);
(ii) where such orders are equal to or less than $1,250.00 (GST inclusive), a delivery fee of $50.00 (plus GST) will be payable by the Customer at the time of placing their order with Jurox;
(c) For Tasmania and other off-shore locations all costs of freight, delivery and unloading the goods shall be borne by Jurox where the order exceeds $1,250.00 (GST inclusive). Where an order is less than $1,250.00, a delivery fee of $100.00 (plus GST) will be payable by the Customer at the time of placing their order with Jurox.
(d) If the Customer requests their own freight carrier, the Customer must have in place transit insurance to cover the delivery and all risk of loss or damage to the goods will pass immediately to the Customer and their freight carrier upon collection from .Jurox’s premises.
(e) If the Customer directs that delivery of the goods be staggered over different times or to different addresses from those specified in the Contract and Jurox (in its sole discretion) agrees, then the Customer will be charged and liable for any additional charges that Jurox considers to be reasonably appropriate to reflect the direct impact upon Jurox’s resources in complying with the Customer’s direction.
(f) If the goods provided to the Customer are substantially in accordance with the requirements of the Contract (including any minor defects, errors or omissions which do not materially affect the normal use or application of the goods), the Customer shall promptly accept the goods in writing in accordance with clause 9(a) of these GT&C. All subsequent transportation of the goods shall be carried out at the expense and risk of the Customer, whether carried out under its direction or not.
(g) If the goods are rejected on delivery, the Customer must promptly advise Jurox in writing the reasons for the rejection within 7 business days in accordance with clause 9(a) of these GT&C, otherwise, the Customer will be deemed to have not properly rejected the relevant goods. Where the goods have been properly rejected within this time period by the Customer, clause 10(b) will apply unless the Customer is a Consumer for the purposes of the Competition and Consumer Act 2010, in which case, clause 10(a) will apply.
5. TITLE, RISK AND INSURANCE
(a) Title in each item of goods shall pass to the Customer upon full payment to Jurox of the price for that item in accordance with clause 3.
(b) Notwithstanding clause 5(a), the risk of loss of or damage to the goods passes to the Customer upon delivery of the goods to the Customer at the agreed place of destination specified in the Contract or such other site as agreed by the parties in accordance with clause 4(c).
(c) Between the delivery of the goods to the Customer to the agreed place of destination specified in the Contract or such other site as agreed by the parties in accordance with clause 4(c) and the passing of title pursuant to these GT&C, the Customer shall insure and keep the Goods insured with an insurer of recognised standing acceptable to Jurox in the names of Jurox and the Customer for their respective rights and interests for the goods full insurable value against such risks as Jurox may reasonably nominate, or in the absence of such nomination, against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of Jurox. The Customer agrees that if it has not paid Jurox for all monies due for the goods, Jurox shall be entitled to any proceeds of insurance payable to the Customer hereby irrevocably assigns such proceeds of insurance in respect of the goods to Jurox.
(d) In relation to goods supplied to the Customer for which payment in full has not been received:
(i) the Customer will hold those goods as bailee for Jurox;
(ii) the Customer undertakes that until it delivers the goods to a third party, it will store the goods on its premises in a manner which makes the goods readily identifiable as Jurox’s goods; and
(iii) when new goods or objects are formed with Jurox’s goods into other products or the goods are affixed to other objects, Jurox will be given full ownership of such new goods or objects.
(e) Jurox takes a security interest under the Personal Property and Security Act 2009 (Cth) (PPSA) in:
(i) all present and after acquired goods acquired by the Customer including any services supplied by Jurox in connection with the provision of those goods;
(ii) any proceeds of any sale of the goods in accordance with clause 5(d)(ii);
(iii) any proceeds of the insurance referred to in clause 5(c), and
(iv) to secure (with equal priority) payment of all amounts that the Customer owes Jurox.
(f) The security interest will continue until the Customer has paid all amounts owing to Jurox in accordance with clause 3 and title passes in accordance with this clause 5.
(g) The Customer:
(i) agrees that Jurox may register (either or both) financing statements and financing change statements under the PPSA in any goods supplied by Jurox to the Customer;
(ii) will promptly sign any further documents, provide any further information, or do any other things that Jurox reasonably requires, at its own expense to enable Jurox to perfect and maintain the perfection of Jurox’s security interest (including by registering a financing statement or financing change statement);
(iii) agrees that it will not register or permit to be registered a financing statement or a financing change statement in any goods in which Jurox has a security interest without Jurox’s prior written consent; and
(iv) will give Jurox 14 days’ prior written notice of any change in the Customer’s name, business practice or any other details, and use its best endeavours to ensure that any applicable financing change statement is registered disclosing the Customer’s new details.
(h) The Customer agrees that:
(i) any purchase by it on credit terms from Jurox or retention of title supply pursuant to this clause 5 hereof will constitute a purchase money security interest (PMSI) as defined under section 14 of the PPSA;
(ii) the PMSI granted herein will continue to apply to any goods hereafter acquired or proceeds of sale arising from the sale of any of the goods supplied by Jurox under these GT&C; and
(iii) Jurox will continue to hold a security interest in goods presently or after acquired by the Customer in accordance with and subject to the PPSA, notwithstanding that the goods may be processed, commingled or become an accession with other goods.
(i) The Customer agrees to waive its right to receive:
(i) a verification statement confirming registration of a financing statement or a financing change statement relating to any security interest arising in connection with the supply of present and acquired goods from Jurox;
(ii) a notice of a proposal to remove personal property that has become an accession in accordance with section 95 of the PPSA;
(iii) a notice of a proposal to dispose of any personal property under section 130 of the PPSA;
(iv) a notice of a proposal to retain any personal property under section 135 of the PPSA;
(v) details of any amounts paid to other secured parties in a statement of account provided by Jurox under section 132(3)(d) of the PPSA; and
(vi) a statement of account under section 132(4) of the PPSA.
(j) The Customer agrees that:
(i) Jurox is under no obligation to dispose of or retain any secured property seized by it within a reasonable time under section 125 of the PPSA;
(ii) following a default, the Customer has no rights to redeem the secured property under 142 of the PPSA; and
(iii) the Customer has no rights to reinstate this Agreement following a default under section 143 of the PPSA.
(k) Except if section 275(7) of the PPSA applies, the Customer agrees not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available and agrees not to request that such information is disclosed. The Customer also agrees to maintain confidence of information in accordance with this clause 5.
(l) This clause 5 will survive the termination of the Agreement to the extent permitted by law.
(a) Jurox will make reasonable efforts to have the goods delivered to the Customer on the date(s) agreed between the parties as the delivery date(s), but Jurox shall be under no liability whatsoever should delivery not be made on the date(s) agreed or by the period stated. Any delivery date specified is an estimate only.
(b) If Jurox is prevented or hindered from delivery of the goods (or any part thereof) by reason of any acts of god, fire, floods or accidents, breakdowns of plant or machinery, unavailability of or delays in shipping or other transport strikes or lock-outs of workmen, shortages or other default by suppliers of fuel, power or raw material or any other circumstance beyond the reasonable control of Jurox, then:
(i) any delay in manufacture, transportation or delivery thereby incurred shall not give rise to any cause of action by the Customer against Jurox;
(ii) during the period such delay continues, Jurox and the Customer shall each have the option to suspend or cancel any subsequent obligations or balance of obligations of the Contract on either of their parts provided that:
(A) written notice shall be given by the party exercising such option:
(B) on any such suspension or cancellation by the Customer, any goods appropriated to the Contract by Jurox whether partly or fully processed at the time of such suspension or cancellation, shall be accepted by the Customer when delivered by Jurox, and
(C) in the case of cancellation the Customer shall be entitled to a credit against purchases in relation to any sums paid by the Customer in respect of goods subject to the cancellation and not subsequently delivered by Jurox pursuant to clause 6(b)(ii)(B).
(iii) the Customer shall not be entitled to cancel its obligations under the Contract unless in the reasonable opinion of Jurox, the Customer’s interest in the Contact has seriously suffered or has been totally impaired by the delay; and
(iv) the Customer shall accept and pay for all of the goods which Jurox had delivered or which Jurox is able to deliver pursuant to clause 6(b)(ii)(B).
The Customer may only require Jurox to delay the delivery of goods or to cancel the Contract if Jurox agrees to do so in writing and provided that the Customer must pay to Jurox what Jurox considers to be a fair and reasonable amount to fully compensate Jurox for any costs, expenses, loss of profit and consequential damage that Jurox has or may suffer in relation to such suspension or cancellation.
(a) Subject always to clause 8(c) herein, all goods ordered by the Customer from Jurox must be paid for by the Customer within 30 days of the last day of the month of delivery. Time of such payment shall be the essence of the Contract.
(b) Subject always to clause 8(g) the Customer shall pay for the whole of the value of the order as invoiced when the same is due for payment notwithstanding that the Customer may have directed that delivery of the goods be to different addresses or that the Customer may not have signed a receipt for the whole or any part of the goods.
(c) Jurox’s express or implied approval of a credit facility to the Customer may be revoked or withdrawn by Jurox at any time.
(d) If the Customer becomes insolvent pursuant to any of the provisions of the Corporations Act 2001, all amounts then due and payable shall immediately become due and payable to Jurox.
(e) If the Customer is a Customer to which clause 8(d) applies, and the Customer fails to pay any amount due in accordance therewith, then:
(i) the Customer shall, in addition to that amount and without prejudice to all or any of Jurox’s other rights and remedies under the Contract, pay:
all costs, charges and expenses incurred by Jurox in enforcing or attempting to enforce any of its rights under the Contract including recovering any damages or unpaid amount(s). Such costs in the case of legal costs shall be charged on a solicitor and own client basis; and
(ii) the Customer shall deliver up to Jurox those goods it has not paid for immediately on receipt of a demand in writing to this effect from Jurox. If the Customer does not comply with the demand within two (2) business days of receipt of the demand, Jurox shall be entitled to enter upon the Customer’s premises at any time to do all things necessary in order to take possession of the goods. The Customer shall be liable for all costs of and associated with exercise of Jurox’s rights under this clause, which shall be payable on demand. (f) Jurox reserves the right to require the Customer to pay the price as determined by clause 3 to Jurox at any time prior to the delivery of the goods at the Customer’s premises
(g) In the event of a dispute, the Customer acknowledges that it shall not be entitled to withhold payment of any undisputed balance then due to Jurox for the goods, and agrees that it shall pay the whole of any undisputed balance pursuant to this clause 8.
9. CLAIMS AND RETURNS
(a) The Customer shall inspect the goods immediately on delivery and shall, within seven (7) business days of receipt of the goods, give notice to Jurox in writing of any matter or thing by reason whereof the Customer alleges that the goods are not in accordance with the Contract, failing which the Customer shall be bound to accept and pay for the goods.
(b) No claim shall be made against Jurox unless, at the time of the claim, all of the goods which are the subject of the Contract remain intact as a whole for inspection by a Jurox representative. Disposal or use of any part of these goods shall constitute acceptance by the Customer of the whole.
(c) The Customer hereby grants to Jurox full and free access to the premises of or occupied by the Customer to enable Jurox to investigate any claim by the Customer. Such investigation shall not constitute or be construed as an admission of liability by Jurox.
(d) Jurox may, after being given the notice referred to in clause 9(a) accept the return of goods. All returns must occur within 14 days of the date of delivery and the invoice and/or the delivery note number must be supplied to Jurox at the point of return.
(e) Goods sold by Jurox to the Customer may not be returned to Jurox by reason of their lower than expected sales demand in the hands of the Customer.
(f) Goods sold by Jurox to the Customer which will reach their expiry date within six months of being delivered to the Customer may be exchanged at no cost to the Customer. To take advantage of this provision, the Customer must apply in writing to Jurox within 30 days of the expiry of said goods, and no later than seven (7) months from the original delivery.
10. LIMITATION OF LIABILITY AND INDEMNITY
(a) Where the Customer is a Consumer for the purposes of the Australian Consumer Law, then:
(i) the goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(ii) if the failure cannot be remedied or is a major failure as defined in the Australian Consumer Law (a Relevant Failure), Jurox’s liability is as stated in the Australian Consumer Law in respect of that Relevant Failure; and
(iii) if such failure is not a Relevant Failure or if Jurox is the manufacturer of the goods and there is a breach by Jurox of any warranty provided in clause 2(c) in respect of those goods, then in Jurox’s absolute discretion Jurox’s liability in respect of that failure or breach is limited to replacement of the goods, the supply of equivalent goods, the repair of the goods or the cost of replacing the goods or having them repaired.
(b) Where the Customer is not a Consumer for the purposes of the Australian Consumer Law, then for all other liability arising from the performance or failure to perform the Contract whether in contract, tort, negligence, strict liability or otherwise and including a breach by Jurox of any warranty provided in clause 2(c) in respect of goods manufactured by Jurox or otherwise, then to the extent permitted by law, Jurox’s liability is limited, at Jurox’s option, to:
(i) replacement of the goods or the supply of equivalent or replacement goods;
(ii) payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Customer’s account, in cash or by cheque at Jurox’s discretion; or
(iii) repayment of any part of the purchase price of the goods which has been paid by the Customer, by credit to the Customer’s account, in cash or by cheque at Jurox’s discretion.
(c) To the extent permitted by law, Jurox will not under any circumstances be liable for any contingent, indirect, consequential or special losses or damages, or for any loss of profit or income, loss of business opportunity, business interruption, increased expense of operation or any financing and holding costs arising directly or indirectly from the Contract or any performance or failure to perform the obligations under the Contract whether in contract, tort, negligence, strict liability or otherwise, including (but not limited to) Jurox’s negligence, default, breach of contract, breach of warranty or guarantee or misconduct even if informed of the possibility of such damages.
(d) The Customer shall at all times indemnify and keep indemnified Jurox (and any Related Body Corporate as defined in the Corporations Act 2001), its employees, agents, contractors, subcontractors and consultant (Indemnified Parties) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by the Indemnified Parties arising from any claims, demands or proceedings where such liability was caused by:
(i) a breach by the Customer of its obligations under the Contract; or
(ii) any wilful, unlawful or negligent act or omission of the Customer including use of the goods for any purpose other than their intended purpose.
(e) The Customer shall at all times indemnify and keep indemnified the Indemnified Parties against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of the Indemnified Parties from any claims, demands or proceedings made by any third party in respect of any loss, damage, death or injury arising from the Customer’s use of the goods.
(f) In respect of any claim between the parties under or in connection with this Contract, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to Jurox which would not have been so apportioned but for such laws.
Any mistake on any quotation, order, invoice, delivery docket or other document issued by Jurox in relation to the Contract shall not be binding on Jurox, and Jurox may in its discretion issue such amended document as is required to rectify such mistake. The Customer shall comply with Jurox’s amended document.
The Customer irrevocably permits Jurox or any person authorised in writing by Jurox to enter into, all of the owned and leased premises of the Customer or any site in which Jurox reasonably believes that the goods are located for the purpose of inspecting or retrieving (subject to the terms of the Contract) any goods of Jurox. The Customer also agrees to indemnify and hold Jurox harmless for reasonable costs of removal, enforcement and legal action in respect of the removal of any Goods, the subject of this Contract.
13. DANGEROUS GOODS
The Customer warrants to Jurox that after delivery of the goods the Customer shall comply with all applicable Acts, Regulations and Laws dealing with the transport, unloading and storage of dangerous or hazardous materials.
The Contract is to be interpreted according to the laws of the State of New South Wales, Australia and Jurox and the Customer agree that the courts in the State of New South Wales shall have exclusive jurisdiction to hear and determine all disputes of and incidental to these GT&C, including any claims in respect of monies due to Jurox pursuant to these GT&C whether on account of debts due, or on account of a claim for damages.