Terms and Conditions

Operative provisions

1 Definitions & Interpretation

1.1 In these conditions of sale of goods:

1.1.1 terms & conditions means these terms and conditions of sale (as amended from time to time by the Seller in its absolute discretion).

1.1.2 buyer means the Buyer of the Goods and/or Services

1.1.3 seller means Bott ABN 69 093 907 707.

1.1.4 goods means all goods ordered from the seller by the purchaser.

1.1.5 services means the service specified in the Tax Invoice/Quotation.

1.1.6 tax invoice means an invoice for the purchase of Goods and/or Services prepared by the Seller.

1.1.7 confidential information means all documentation, data drawings, intellectual property and other information of a party (and includes without limitation Personal information) except to the extent that such information is in the public domain through no breach of this Agreement.

2 Application of conditions

2.1 These conditions apply to all contracts of sale between a purchaser and the seller, whether or not evidenced or contained in a written quotation and/or order, or any other document. They may only be varied with the written approval of the seller. They override any inconsistent conditions in any document or other communication used by the seller or the purchaser in relation to a contract of sale.

3 Communication of orders / Quotations

3.1 A quotation given by the Seller does not constitute an offer by the Seller. An order placed by the Buyer pursuant to a Quotation constitutes an offer to purchase by the Buyer and is not binding on the Seller unless or until accepted by the Seller.

3.2 Each order will be communicated to the seller in a manner acceptable to the seller and it will contain all information necessary to enable the seller to give effect to the order. The seller will be entitled to reject any order.

3.3 When communicating an order for Goods and/or Services, The Buyer must submit to the Seller an Official written order showing an order number and a full description of the Goods and/or Services required. If the order is made pursuant to a Quotation, The Quotation number must be clearly identified on the order.

3.4 Any information supplied to the Seller in any format being for manufacture, and found to be incorrect, not enabling completion to the Quote's intention will place the project/order in suspension, thus removing the Original Quote from offer. Until such time that the corrections to the information are made by the Buyer, on receipt of the new information from the Buyer the Seller will revise the Quote/Offer based upon the new information supplied.These corrections may also be made by the Seller although they will be made under a revised Quotation/Offer to the Buyer fully disclosing the revised Goods and/or Services.

4 Returned Products

4.1 Subject to clause 11, the Seller will not be under any obligation to accept any Goods returned by the Buyer and may do so only on terms to be agreed in writing in each individual case and at the total discretion of the Seller.

5. Cancellation

5.1 No order for, or purchase of, Goods and/or Services may be cancelled by the Buyer unless there is prior written consent by the Seller (and written agreement by the Buyer to fully indemnify the Seller against all losses and costs).

6. Performance

6.1 The Seller will not be responsible for any failure to meet any of its obligations that arises from any fact, circumstance, matter or thing beyond the reasonable control of the Seller, and will be relieved of its obligations to the extent, and for the period, that it is so unable to perform.

7 Delivery

7.1 Goods will be deemed to have been delivered to the Buyer by the Seller (Delivery):

7.1.1 Where transportation and loading is arranged or provided by the Buyer - when the Goods are made available for loading at the Seller's premises.

7.1.2 Where transportation is arranged or provided by the Buyer but loading is carried out by the Seller - upon completion of loading of the Goods onto the relevant transportation vehicle provided by the Buyer.

7.1.3 Where transportation is arranged or provided by the Seller - upon delivery of the Goods to a location nominated by the Buyer.

7.2 The seller will make all reasonable efforts to effect Delivery of Goods, or to provide Services to the Buyer, on the date(s) agreed between the parties (or as set out on the relevant tax invoice/quotation), but if for any reason whatsoever, Delivery does not occur or the Services are not provided, on that (or those) date(s), then;

7.2.1 The Seller will not be liable to the Buyer;

7.2.2 The Buyer will not be entitled to cancel any order for, or purchase of, Goods and/or Services; and

7.2.3 The Buyer must accept and pay (in full and on time) for the Goods and/or Services despite the delay.

7.2.4 The risk in the goods passes to the purchaser when the goods are transferred to the purchaser's transport at the seller's premises or when the goods are delivered to the purchaser's premises or other nominated premises by the seller or the seller's carrier.

8. Rights in Relation to Goods and/or Services (Romalpa Clause)

8.1 Risk of loss, or damage, to Goods passes to the Buyer on delivery.

8.2 Property and full legal ownership in the Goods remains with the Seller, and the Seller reserves the right to dispose of the Goods, until such time as full payment is made for all amounts owing by the Buyer to the Seller so that the Buyer's total indebtedness to the Seller under the Contract is discharged.

8.3 The Buyer acknowledges and agrees that until the total indebtedness under the Contract is discharge;

8.3.1 The Buyer holds the Goods as Baillie of the Seller;

8.3.2 A fiduciary relationship exists between the Seller and the Buyer for the purpose and

8.3.3 The Buyer will ensure that the Goods are adequately separated from other goods so that they are clearly identifiable as the property of the Seller.

8.4 If;

8.4.1 The Buyer fails to pay any amount of the Buyer's total indebtedness to the Seller under the Contract when it is due to the Seller;

8.4.2 a receiver and manager, liquidator, provisional liquidator or other insolvency administrator is appointed in respect of the Buyer or a scheme of arrangement is proposed or approved in respect of the Buyer or a mortgagee enters into possession of any of the Buyer's assts or an application is made for the winding up of the Buyer (Insolvency Event); or

8.4.3 The Buyer is otherwise in default under the Contract, then the Seller may, without notice, and without prejudice to any of its other rights and remedies, recover and/or re-sell the Goods or any of them, and may enter at any time upon the Buyer's premises by its employees and/or agents for that purpose.

8.5 If the Goods are resold, or products manufactured using the Goods are sold by the Buyer prior to the Seller having been paid in full for the Goods), the Buyer must hold (in a separate identifiable account as the beneficial property of the Seller) such part of the proceeds of any such sale as represents the Tax Invoice price of the Goods Sold or used in the manufacture of the Goods sold, and must pay that amount to the Seller immediately upon request, Despite the prevision above, the Seller will be entitled to maintain and action against the Buyer for the Purchase price.

9. Loss or Damage in Transit

9.1 Subject to any applicable laws, the Seller will not be responsible for any loss or damage to the Goods in transit whether for Goods delivered or collected.

9.2 Unless otherwise agreed in writing by the Seller, the Buyer must arrange for insurance of the Goods in Transit for their full insurable value.

10. Price and Payment

10.1 Unless otherwise stated, all prices set out in the Quotation and the Tax Invoice are exclusive of GST. If GST is or becomes payable in respect of any supply made by the Seller to the Buyers, The payment for that supply will be increased by an amount equal to the GST payable so that the Seller retains the amount it would have retained but for the imposition of GST, provided that no additional amount will be payable under the clause until the Seller has issued a Tax Invoice to the Buyer for that supply. Words or expressions used in this clause have the same meaning as defined in the A new Tax System (Goods and Services Tax) Act 1999 (Cth)The price of the goods will be the price published in the seller's price list prevailing at the date of receipt by the seller of the purchaser's order for those goods, or otherwise, the last quoted price provided by the seller, and ordered by the purchaser, within the time guidelines of the latest quote.

10.2 Prices for;

10.2.1 Goods are those current at the date of Delivery; and

10.2.2 Services are those current at the date on which those Services are rendered, unless otherwise agreed upon in writing, and are based on rates of freight, insurance, duties, sorting and stacking charges, cost of materials and other charges affecting the cost of production. Any variations in such costs and charges before acceptance of the Contract will be to the Buyer's account.

10.3 The prices charged by the Seller for Goods and/or Services are subject to alteration without notice.

10.4 Payment of the full amount set out in a Tax Invoice must be made within 30days of the date of the Tax Invoice.

10.5 Without in any way limiting the Seller's right to require payment in full on the due date, the Seller may;

10.5.1 Charge interest on overdue accounts at the rate of 2.5% above the overdraft rate charged by the Seller's bankers; and

10.5.2 Suspend any further deliveries to the Buyer or terminate any contract in relation to any undelivered Goods or unperformed Services.

10.6 Any collection charges, legal expenses and commissions incurred in attempting to recover payment will be payable by the Buyer.

11. Warranties, Exclusions & Limitation of Liability

11.1 In addition to any written express warranty that may be given by the Seller in relation to the Goods or Services, The Seller acknowledges that State and Federal Legislation implies certain conditions and warranties into agreements for the Supply of goods and services, which cannot be excluded, restricted or modified (Non-Excludable Warranties). The Seller does not exclude, restrict or modify the Non-Excludable Warranties.

11.2 To the extent permissible by law, the liability of the Seller under any of the Non- Excludable Warranties (including those contained in Section 74H and Division 2 of Part V of the Trade Practices Act 1974) is limited to, at the Seller's discretion; in the case of Goods, replacing the Goods, repairing the Goods or payment or the cost of replacing or repairing the Goods; and in the case of Services, re-supplying the Services, having the Services re-supplied or payment for the cost of having the Services re-supplied.

11.3 Except for the Non-Excludable Warranties, the Seller excludes all other conditions and warranties implied by custom, the general law or statute.

11.4 To the extent permissible by law, the Seller will not be liable for any personal injury, incidental damages, consequential losses, loss of profit or any like claims whatsoever arising from any use of, or incidental to, the Goods and/or Services, or arising out of the Seller's negligence in any way whatsoever.

11.5 To the extent that the Goods and/or Services are, or any component part of the Goods and/or Services is, supplied to the Seller by a third party, any warranty offered by the Seller in relation to the Goods and/or Services or component part of the Goods and/or Services will be limited to the Sellers right of redress (if any) against the third party supplier arising out of any alleged fault/defect in the Goods and /or Service.

12 Intellectual Property Rights

12.1 Copyright, patent, database rights, registered designs, trademarks, eligible layout rights and all other right of proprietary nature created or arising as a result of intellectual activity in carrying out the work, vest in are transferred by the Vendor to the Buyer on creation. This clause does not alter the ownership of such rights pre-existing the date of the Purchase Order.

12.2 The Vendor

12.2.1 warrants that the sellers us of Products provided by the Vendor under the Agreement shall not infringe any author’s moral rights under the Copyright Act 1968; and

12.2.2 shall indemnify the seller, it employees and sub-contractors against any claims against, or costs, expenses, losses or damages suffered or incurred by the Seller arising out of , or in any way in connection with, any actual or alleged infringement of any author’s moral rights under the Copyright Act 1968.

12.3 For the purpose of this clause 12, the seller use of material provided by the Vendor includes the Seller right to reproduce publish, copy, adapt, communicate to the public, materially distort, destroy, mutilate or in any way change the materials or part of the Works to which the materials or any other work provided by the Vendor under this Agreement relates:

12.3.1 with or without attribution of authorship;

12.3.2 In any medium; and

12.3.3 In any context and in any way it sees fit.

13. Insolvency Event

13.1 If the Buyer becomes, or resolves to become subject to any insolvency event, then; all amounts outstanding by the Buyer to the Seller will immediately become due and payable; and the Buyer's right to possession of any Goods supplied by the Seller which have not been paid for in full by the Buyer ceases, and the Seller will be entitled to recover possession of those Goods under clause 8.4.

14. Jurisdiction

14.1 Despite any implication of law to the contrary, all contracts between the Buyer and the Seller will be deemed to be made and construed and to be enforceable in and according to the laws of South Australia, and to the subject to the jurisdiction of the Courts of that State.

15. Waiver

15.1 The fact that either party fails to do, or delays in doing, something it is entitled to do under this document, does not amount to a waiver of its right to do it. Any waiver must be in writing. A written waiver by the seller is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach; or as an implied waiver of that obligation or breach in relation to any other occasion.

16. Entire Contract

16.1 The Contract contains the complete and final agreement between the Buyer and the Seller, and no other document purporting in any way to modify the Contract will be binding on the Seller unless made in writing and signed by the Seller's authorised representative.

17. Variation

17.1 The seller may vary these Terms & Conditions at any time by notice to the Buyer.

18. Severance

18.1 If any terms or part of these Terms & Conditions is illegal or unenforceable it may be severed from these Terms & Conditions and the remaining terms or parts will continue in full force and effect.

19. Information provided by the purchaser to its customers

19.1 This clause applies to purchasers who purchase goods from the seller for re-supply.

19.1.1 The purchaser will provide information about the goods to their customers as the seller may from time to time specify.

19.1.2 The purchaser will not make any representations about the goods including their fitness for any purpose.

19.1.3 The purchaser will indemnify and keep indemnified and hold harmless the seller in respect of all claims arising from a breach of this clause by it.

19.1.4 Nothing in this clause will give rise to any legal relationship between the seller and the purchaser.

20. Privacy

20.1 The seller will treat any information gathered in relation to the contract of sale in accordance with the National Privacy Principles contained in the Privacy Act 1988.

21. No Assignment

21.1 A party must not assign its benefits or obligations under a Contract without the prior consent in writing of the other party.

21.2 A party must not unreasonably with hold its consent to an assignment.