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1. DEFINITIONS
In these standard customer terms and conditions (Terms):
Customer means the person or entity purchasing the Goods and Services stated in the Purchase Confirmation from Natrio.
Goods mean all tangible property of any nature supplied by Natrio.
Purchase Confirmation means a confirmation of order form given by Natrio to the Customer.
Natrio means Pro Asia Pacific Pty Ltd as trustee for the Pro Asia Pacific Unit Trust.
Services mean all services provided by Natrio in supplying the Goods or as otherwise stated in the Purchase Confirmation.
2. FORMATION AND SCOPE OF CONTRACT
2.1. A contract for the sale of Goods and / or the supply of Services (as applicable) from Natrio to the Customer is formed when an order is received from the Customer and accepted by Natrio by issuing a Purchase Confirmation (Contract).
2.2. The Contract will be comprised of these Terms and the terms and conditions set out in the Purchase Confirmation. To the extent that the terms and conditions of the Purchase Confirmation are inconsistent with these Terms, the terms and conditions of the Purchase Confirmation will prevail.
2.3. The Contract constitutes the entire agreement between Natrio and the Customer and supersedes, takes precedence over and excludes any other terms or prior agreement (whether appearing on any purchase order, statement of work, proposal, quote or other document related to the provision of the Goods or Services), including any terms and conditions specified in a Customer document.
3. PRICE
3.1. The price charged and payable for the Goods and Services will be Natrio‘s prices at the date the Goods or Services are delivered to the Customer as set out in the Purchase Confirmation (Price).
3.2. Natrio is entitled to change the Price of the Goods and Services before acceptance of delivery of the Goods or Services by the Customer where it considers it appropriate, including to take into account of any increase in its costs of supplying the Goods or Services due to changes beyond Natrio’s control and including in any of the following items (and Natrio may notify the Customer of such changes by email or by notice published on its website): a) the manufacturer’s price to Natrio;
b) freight, including cost of over-carriage;
c) insurance;
d) exchange rates;
e) raw material cost increases;
f) quarantine, customs or port charges, demurrage; and
g) increases in any duty, tax, charge or levy on the Goods or Services or any change in government policy, law or regulation.
4. PAYMENT
4.1. The Customer must pay Natrio for the Goods or Services within thirty (30) days from the end of the month during which the Goods or Services are invoiced by Natrio to the Customer.
4.2. Should the Customer delay or default in respect of any payment due to Natrio, Natrio may charge interest at the 90 day bank bill swap reference rate (average bid) as published in the Australian Financial Review (or such other publication as determined by Natrio from time to time) plus 2%. Such interest will be calculated daily from the date payment was due under the relevant invoice until the date of full and final payment by the Customer. Any payment by the Customer will be credited first against the interest accrued to the date of payment.
4.3. If, in Natrio’s opinion, the Customer’s financial status is or becomes unsatisfactory to Natrio, Natrio reserves the right to suspend delivery, require payment on or before delivery of any Goods or Services, or require additional security for payment in respect of future deliveries of Goods or Services.
5. GST
5.1. For the purposes of the Contract: a) GST Law means the New Tax System (Goods and Services Tax) Act 1999 (as amended or replaced from time to time); and
b) except where the context suggests otherwise, terms used in this clause 5 have the meanings given to those terms by the GST Law.
5.2. If GST has any application to any supply made under or in connection with the Contract, Natrio may in addition to any amount or consideration expressed as payable elsewhere in the Contract, recover from the Customer an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Customer for the Goods or Services by the prevailing GST rate.
5.3. Any additional amount on account of GST recoverable from the Customer shall be calculated without any deduction or set-off of any amount, and is payable by the Customer at the same time and in the same manner as paying the amount or consideration for the Goods or Services under the Contract.
5.4. Prior to requesting the Customer to pay an amount of GST, Natrio will issue to the Customer a tax invoice.
5.5. Where an adjustment event in relation to supply of the Goods or Services under the Contract has occurred, Natrio
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must issue an adjustment note to the Customer for that adjustment event.
6. DELIVERY
6.1. Unless otherwise stated in the Purchase Confirmation, the Goods will be delivered by Natrio to the address nominated in the Purchase Confirmation.
6.2. Natrio reserves the right to deliver the Goods by instalments and each instalment will be deemed to be a separate Contract. Failure of Natrio to deliver an instalment will not entitle the Customer to rescind, repudiate or otherwise terminate the Contract for any other installment.
6.3. Natrio will make all reasonable efforts to deliver the Goods and provide the Services by the date set out in the Purchase Confirmation, however the Customer acknowledges any such date is an estimate only and that Natrio is not liable for any loss or damage which result from the Goods not being delivered or the Services not being provided by such date.
7. TITLE AND RISK
7.1. Unless otherwise stated in the Purchase Confirmation, risk in the Goods will pass to the Customer upon delivery of the Goods by Natrio in accordance with clause 6.1.
7.2. Title in the Goods will not pass to the Customer until Natrio has received full payment in respect of: a) all Goods and Services the subject of the Contract; and
b) any other indebtedness of the Customer to Natrio under any other Purchase Confirmation issued to the Customer.
7.3. Until title in the Goods passes from Natrio to the Customer: a) the Customer will keep the Goods separately identified and stored in such manner as to show clearly that they are the property of Natrio; and
b) the Customer will, at its expense, insure the Goods for their market value.
7.4. The Customer grants Natrio, its employees and agents the right to enter the Customer’s premises, or any other premises where the Goods are known to be stored, to inspect the Goods and / or repossess any Goods that have not been fully paid for by the Customer in accordance with clause 4.1.
8. PERSONAL PROPERTY AND SECURITIES
8.1. By virtue of clause 7.2, the Customer acknowledges that it has granted a Security Interest in the Goods (and proceeds relating to the Goods) to Natrio to secure the Customer’s obligations under clause 7.2. At Natrio’s cost, the Customer must do all things reasonably required by Natrio to register and perfect that Security Interest in accordance with the PPSA.
8.2. To the extent the Security Interest described in clause 8.1 is not fully registered or perfected (for whatever reason), the Customer acknowledges that it has granted a fixed charge to Natrio over the Goods to secure performance of the Customers obligations under clause 7.2.
8.3. To the extent the law permits: a) for the purposes of sections 115(1) and 115(7) of the PPSA: (A) Natrio need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) or 135 of the PPSA; and
(B) sections 142 and 143 of the PPSA are excluded;
b) for the purposes of section 115(7) of the PPSA, Natrio need not comply with sections 132 and 137(3) of the PPSA; and
c) For the purposes of this clause 8: (A) PPSA means the Personal Property Securities Act 2009 (Cth); and
(B) Security Interest has the meaning given in the PPSA.
9. CUSTOMER’S LIABILITY AND DEFAULT
9.1. If the Customer: a) fails to make any payment due under the Contract or commits any other breach of the Contract;
b) is unable, or deemed by any applicable law or in Natrio’s reasonable opinion to be unable, to pay its debts as and when they fall due or ceases, or threatens to cease, to conduct its business;
c) has a mortgagee, or agent of a mortgagee, enter into possession of all or any part of the property of the Customer;
d) commits an act of bankruptcy (where the Customer is a real person);
e) makes any composition or arrangements with creditors; or
f) being a company, passes any resolution or takes any step in connection with the appointment of an administrator or liquidator, or any step is taken by the holder of a security of all or nearly all of the property of the Customer to enforce its security,
the Customer will be in default.
9.2. If the Customer is in default under clause 9.1, Natrio may at its option: a) withhold further deliveries and supplies of Goods and Services;
b) treat any and all contracts between it and the Customer as terminated;
c) treat any monies owed to Natrio as being immediately due and payable,
in addition to any other remedies under contract, tort, equity statute or otherwise and without prejudice to any other claim or rights of Natrio.
10. ADVICE
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10.1. Natrio assumes no obligation or liability for any technical or safety advice it furnishes concerning the Goods and the Customer agree that all such advice is given without charge or warranty and is accepted at its risk.
10.2. The Customer acknowledges and agrees that Natrio does not manufacture or produce the Goods.
11. SCOPE OF RESPONSIBILITY
11.1. Except where necessarily incorporated by law, all Goods or Services provided by Natrio are subject only to the express terms and conditions of the Contract and no other term, condition or warranty shall be incorporated into the Contract.
11.2. Provisions of the Competition and Consumer Act 2010 (Cth) or other applicable State, Territory or Commonwealth legislation may imply warranties, confer statutory guarantees or impose other obligations on Natrio which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, Natrio’s liability under such provisions shall be limited at Natrio’s option to: a) re-supply of the Goods or Services;
b) supply of equivalent Goods or Services; or
c) payment for the cost of re-supplying the Goods or Services.
12. INDEMNITY
12.1. To the extent permitted by law, the Customer hereby indemnifies Natrio, its affiliates and their employees, agents and contractors and keeps them indemnified and held harmless from and against any liability, cost, claim, expense (including attorney’s fees and expenses) or any loss or damage of any other kind whatsoever including, without limitation, any material or immaterial damage in the form of personal injury, illness or death to any person or damage to any property.
12.2. The Customer assumes all risks and liability in respect of any use of the Goods or Services, whether or not used along or in conjunction with other goods, products or services.
12.3. Natrio’s liability for damages with regards to the Goods and Services, whether based upon Natrio’s negligence, breach of contract, breach of warranty or otherwise, shall not exceed the purchase price of the Goods or Services with respect to which a claim is based and shall not include liability for special, incidental, indirect, punitive or consequential damages including, but not limited to, lost profits, injury to good will, and damages for injuries to persons or to property. This limitation of liability shall include Natrio’s liability for damage to persons or property resulting from the use of the Goods or Services in manufacturing processes, or in combination with other substances, or otherwise.
12.4. The Customer shall make no claims relating to the Goods or Services unless Natrio receives written notification of the facts relating to such claim as soon as the Customer becomes aware of those facts, and Natrio is provided with full access to the Customer’s premises, employees and records to be able to investigate such claim. Such written notification must also be adequately documented to Natrio’s satisfaction. Any action by the Customer for breach of contract or negligence arising from the supply of the Goods and Services by Natrio must be commenced within one year of the date of delivery, or the due date of delivery in the event of non-delivery, of the Goods and Services.
13. INTELLECTUAL PROPERTY
13.1. In these Terms, “Intellectual Property” means all copyright, patents and all other rights throughout the world in relation to inventions, registered and unregistered trademarks (including service marks) and registered designs, and includes all original works of authorship fixed in any tangible medium of expression.
13.2. To the extent that any Intellectual Property is embodied in or relates to the Goods or Services, it is vested in and owned by Natrio, and Natrio grants to the Customer a royalty free, non-exclusive licence to use that Intellectual Property in accordance with the Contract.
13.3. Natrio makes no representation or warranty of any kind, expressed or implied, that the Goods or Services supplied or the use of such Goods or Services or articles made from the Goods or Services either alone or in conjunction with other substances will not infringe any patent, trademark or any other intellectual property right. The Customer will notify Natrio of any claim or suit involving the Customer in which such infringement is alleged and if Natrio considers itself to be affected, it will be entitled completely to control the defence or compromise of any such allegation of infringement.
14. HEALTH AND SAFETY
14.1. It is the Customer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods following delivery and where information is supplied to the Customer on potential hazards relating to the Goods to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers.
14.2. Without prejudice to the foregoing, it is also the Customer’s responsibility to provide safe facilities for the reception and storage of the Goods.
14.3. The Customer indemnifies and must keep indemnified Natrio against all actions, claims, demands, summons, suits, proceedings, judgments, orders or decrees arising out of or in connection with any act or omission of the Customer in respect of its obligations under this clause 14.
15. FORCE MAJEURE
15.1. Natrio is not responsible for any failure to perform any obligation under these terms if its performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade,
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revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of Natrio (each a “Force Majeure Event”).
15.2. If by reason of a force majeure event, the delay or non-performance of Natrio’s obligations continues for more than ninety (90) consecutive days, either Natrio or the Customer may terminate the Contract by written notice.
16. Trustee limitation of liability
16.1. Notwithstanding any other provision of the Contract, Natrio enters into the Contract in its capacity as trustee of the Pro Asia Pacific Unit Trust (“Trust“) and in no other capacity.
16.2. The recourse of the Customer against Natrio in respect of any obligation or liability of Natrio under or in respect of the Contract is limited to Natrio’s ability to be indemnified from the assets of the Trust and if as a result of this limitation the Customer does not receive or recover the full amount due to it in connection with the performance or non-performance by Natrio of any of its obligations, or the payment or non-payment by Natrio of any of its liabilities, under or in respect of the Contract, the Customer may not seek to recover the shortfall by bringing proceedings against Natrio in its personal capacity.
16.3. Clause 16.2 does not apply to any obligation or liability of Natrio to the extent that it is not satisfied because there is for any reason a reduction in the extent of Natrio’s indemnification out of the assets of the Trust arising as a direct result of its fraud, negligence or breach of trust.
17. MISCELLANEOUS
17.1. The Contract may only be varied by a document signed by or on behalf of each of Natrio and the Customer.
17.2. Any notice or other written communication given under or in connection with the Contract may be delivered personally or sent by post, email or facsimile to the address of the party provided in the Purchase Confirmation (or as otherwise advised between the parties from time to time).
17.3. The relationship between Natrio and the Customer for the purposes of the Contract is that of independent contracting parties. The Contract must be construed in every respect to give effect to this independence. Nothing in the Contract may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.
17.4. The Customer cannot delegate, assign, subcontract or transfer any of its rights or obligations under the Contract, either in whole or in part, to any third party or any affiliates without the prior written consent of Natrio.
17.5. Natrio may assign, novate or otherwise transfer any of its rights or obligations under the Contract or delegate or sub-contract the performance of any of its obligations under the Contract without the consent of the Customer.
17.6. If the Customer receives Confidential Information, the customer must use all reasonable endeavors to keep this information confidential and must not disclose that information to any third party. “Confidential Information” means information that is not generally available to the public at the time of disclosure to the Customer or information that is in fact, or should reasonably be regarded as, confidential.
17.7. Whenever possible, the provisions of the Contract shall be interpreted so as to be valid and enforceable under applicable law. However, if one or more provisions of the Contract is found to be invalid, illegal or unenforceable (in whole or in part), the remainder of the provision and of the Contract shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision(s) had never existed.
17.8. Any failure or delay by Natrio in exercising any right under the Contract, the exercise or partial exercise of any right under the Contract, or any reaction or absence of reaction by Natrio in the event of breach by the Customer of one or more provisions of the Contract shall not operate or be construed as a waiver (either express or implied, in whole or in part) of Natrio’s rights under the Contract or preclude the further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver by Natrio following a specific failure by the Customer, this waiver cannot be invoked by the Customer in favor of either a new failure, similar to the prior one, or a failure of another nature.
17.9. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of the Contract shall be governed by and construed in accordance with the laws of the state of Victoria, Australia.
17.10. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the state of Victoria, Australia and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.