ORAFOL AUSTRALIA - TERMS AND CONDITIONS OF SALEAll Orders placed with ORAFOL Australia Pty Ltd ACN 065 420 706 (hereinafter referred to as “OA”) are subject to the following Terms and Conditions.
The Customer acknowledges and confirms that it, he or she has read, understood and unconditionally accepts the Terms and Conditions. The Terms
and Conditions constitute a legally binding Agreement between OA and the Customer.
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1.1

Definitions and Interpretation
In these Terms and Conditions:“Agreement” means the legally binding agreement (incorporating the Quote,
Order Confirmation, Distribution Agreement and the following Terms andConditions) formed between OA and the Customer on the acceptance of an
Order by OA;“Business Day” means a day that is not a Saturday, Sunday or public holiday
in the State or Territory in which the Goods and/or Services are being
delivered to the Customer;“Claim” means any actions, suits, proceedings, demands, losses, injuries,
damages, costs, expenses, judgments or any other detriment whatsoever;“Confidential Information” means and includes any information that by its
nature is confidential, is designated by a party as confidential, or the recipient
knows or ought to know is confidential and includes, without limitation:(a) information conveyed in written, graphic, oral, visual or physical form
and may include, without limitation, various technical and commercial
data, know-how and information, and any other activity or information of
any nature whatsoever including data, data bases, source codes,
methodologies, techniques, manuals, artwork, advertising manuals,
formulae, processes, designs, sketches, photographs, plans, drawings,
specifications, samples, reports, marketing or commercial information,
studies, improvements, examples, cases, findings, inventions andideas, the Intellectual Property, trade secrets, patents, engineering andproduct specifications, material formulations, models, prototype,product concepts and other records and information in relation to OA or
the business of the OA;(b) financial, management and marketing information;(c) research, plans or other documentation;(d) information imparted in discussions or obtained through inspections orby any other method from OA or the agents, advisers, consultants,
employees or contractors of OA;(e) information marked as ‘confidential’;(f)information which the parties are instructed is confidential, or which theparties are instructed to be kept confidential;(g) information concerning the organisation, finance, customers, markets
and suppliers of OA;(h) information disclosed to the parties in circumstances which would, to areasonable person, indicate that the information is sensitive commercial
information or information of a kind which, if disclosed to third persons,could or might cause any of the parties to sustain loss or damage; and(i)oral, written, electronic and/or recorded information of any party’s
business, products, financial or marketing information, operations,systems, assets or liabilities,
but does not include information which:(j)is or becomes public knowledge other than by breach of this Agreement;(k) is required to be disclosed by law;(l)
was known by the recipient as at the date of this Agreement;(m) has been independently developed or acquired by the recipient without
reference to the disclosing party’s Confidential Information,
where the burden of establishing any of the exceptions referred to in (j) to (m)above will be upon the recipient;“Credit Application Form” means the OA credit application form by which a
Customer can apply for a credit account with OA in respect of the sale ofGoods and/or Services to the Customer;“Customer” means any Person that enters the Agreement for the purchaseof the Goods and/or Services as the Customer, or enters the Agreement forand on behalf of the Customer, and if there is more than one Customer, theneach of them jointly and severally, including all executors, administrators,
successors and permitted assigns or any person acting on behalf of and withthe authority of the Customer;“Delivery” means the delivery of the Goods and/or Services to the Customer’s
Delivery Address in the Territory;“Delivery Address” means the delivery address of the Customer or the
carrier of the Customer in the Territory as specified in the Order;“Delivery Time” means the estimated time of Delivery of the Goods and/or
Services either to the Delivery Address or to the carrier of the Customer;“Goods” means the goods supplied or to be supplied by OA to the Customer
from time to time pursuant to this Agreement;“GST” means GST under the GST Law and any other tax, levy or impost(including a goods and services tax, consumption tax or value added tax)
applying in respect of the payment of any money under this Agreement or the
supply of any goods or services under this Agreement;“GST Law” means A New Tax System (Goods and Services) Tax Act 1999
(Cth) and any other law, public ruling or determination imposing or dealing
with the assessment, collection, imposition, calculation, payment or recovery
of or liability for GST;
“Intellectual Property” means any and all intellectual and industrial property
rights throughout the world including rights in respect of or in connection with:(a) a party’s intellectual property that existed prior to, or createdindependently of, this Agreement;

(b)

1.2

any Confidential Information, trade secrets, technical data and knowhow;(c) copyright;(d) inventions and discoveries (including patents, innovation patents andutility models);(e) trademarks or service marks and rights in, arising out of, or associatedwith domain names, business names and social media accounts;(f)
designs or circuit layouts; and(g) any other rights resulting from intellectual property activity in theindustrial, commercial, scientific, literary or artistic fields which subsist
or may hereafter subsist,
whether or not now existing and registered or registrable and includes any
right to apply for the registration of rights and all renewals and extensions;“Law” means all applicable laws of the State, Territory or jurisdiction in which
the Goods and/or Services are provided by OA to the Customer including allamendments and replacing laws;“Loss” means any damage, loss, liability, expense or cost whether direct orindirect, consequential or incidental;“Order” means an Order placed by the Customer with OA for the purchase
and/or delivery of Goods and/or Services to the Customer which must specify(and provide any other information requested by OA):(a) the date of the placement of the Order;(b) the quantity and description of the Goods and/or Services ordered;(c) the proposed Delivery Time; and(d) the Delivery Address;“Order Confirmation” means a written confirmation of the Order by OA that
may be in the form of an invoice provided to the Customer by email, post or
provided to the Customer upon Delivery of the Goods and/or provision of theServices;“OA” means ORAFOL Australia Pty Ltd ACN 065 420 706 and includes OA’s
administrators, successors and permitted assigns and any person acting on
behalf of and with the authority of OA;“Party” means a party to this Agreement;“Person” means a natural person, corporation or any body that is recognised
at Law as being a legal entity or having legal personality;“Price” means the price specified in the Order Confirmation as payable by the
Customer to OA for the Goods and/or Services, or the price specified in any
specific Quote issued by OA for the supply of Goods and/or Services at aparticular price, whichever is greater. The Quote shall be open for acceptancewithin the period stated in the Quote or, if no period is stated, within 30 daysof the Quote date;“Quote” means the written quotation issued by OA to the Customer in relation
to the Goods and/or Services (including any special conditions and/or otherdetails applicable to the Customer’s Order under this Agreement) to whichthese Terms and Conditions are either attached or to which access may begained by the Customer by accessing any link specified in the Quote;“Services” means the services provided or to be provided by OA to theCustomer from time to time pursuant to the Agreement;“Terms and Conditions” means these Terms and Conditions [as amended
from time to time by OA]; and“Territory” means Australia and New Zealand or any other specific or
restricted geographical area in Australia and New Zealand as determined, atthe sole, absolute and unfettered discretion, of OA from time to time as being
the only serviceable areas for an Order.
In these Terms and Conditions (including defined Terms), unless the context
states otherwise:(a) headings are included for convenience only and do not affect theinterpretation of the Terms and Conditions;(b) references to legislation or provisions of legislation include changes orre-enactments of the legislation and statutory instruments andregulations issued under the legislation;(c) words denoting the singular include the plural and vice versa, words
denoting individuals or persons include bodies corporate and viceversa, references to documents or agreements also mean those
documents or agreements as changed, novated or replaced, and words
denoting one gender include all genders;(d) grammatical forms of defined words or phrases have corresponding
meanings;(e) unless otherwise stated, a reference to an amount of money is areference to the amount in the lawful currency of the Commonwealth ofAustralia;(f)if the day on or by which anything is to be done is a Saturday, a Sunday
or a public holiday in the place in which it is to be done, then it must be
done on the next Business Day;(g) references to a party are intended to bind their executors, administratorsand permitted transferees; and(h) obligations under this Agreement affecting more than one party bindthem jointly and each of them severally.

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2.1

Formation of Agreement
These Terms and Conditions supersede all previous Terms and Conditions
imposed by OA and may only be varied in writing by OA.
2.2 Each Order will constitute an offer by the Customer to purchase Goods and/or
Services from OA upon and subject to these Terms and Conditions. Any Pricelists or Quotes given by OA to the Customer are an invitation to the Customer
to place an Order with OA only and do not constitute an offer capable ofacceptance.
2.3 These Terms and Conditions are part of your Agreement with us. This
Agreement consists of: the Quote, the Order Confirmation, the Distribution
Agreement (if any) and these Terms and Conditions constitute the entire
Agreement between the parties. Any variations to the Agreement must be
expressly agreed to in writing into the by OA and the Customer.
2.4 A Quote submitted by OA to the Customer may be varied or withdrawn at any
time prior to the acceptance of an Order by OA. Clerical or other errors madein respect of any Quote issued shall be subject to correction by OA.
2.5 A binding Agreement will only be made between OA and the Customer for thesale and purchase of Goods and/or Services if, upon the acceptance of theOrder by OA, the Customer is provided with an Order Confirmation.
2.6 OA may terminate this Agreement at any time before the Delivery of Goods
and/or provision of Services to the Customer by giving written notice to theCustomer. OA shall not be liable for any Claim, Loss or damage whatsoever
arising from such cancellation.
2.7 For the avoidance of doubt, OA is under no legal obligation to accept any
Order from the Customer. The Customer acknowledges that OA’s ability toaccept or fulfil an Order is subject to the availability of stock and/or thecapacity of OA (whether in relation to the availability of servicing personnel orotherwise) to meet an Order of the Customer. OA may at its sole and absolute
discretion and for any reason whatsoever reject any Order from the Customer.
2.8 An Order may only be made by the Customer to OA:(a) in writing or by electronic data interchange (email);(b) by telephone, if within 3 Business Days of the placement of the Order,
it is confirmed by a means outlined in clause 2.8(a); or(c) via the online eStore at https://www.orafol.com/en/australia/.
2.9 The Agreement resulting from the provision of the Order Confirmation to theCustomer cannot be terminated or cancelled by the Customer for any reason
without OA’s prior written consent and OA may at its discretion impose areasonable cancellation fee (including, without limitation, a Claim for any Lossor loss of profits suffered by OA).
2.10 A minimum Order value of $75.00 (excluding GST) applies to all Orders. OA
may impose a $10.00 surcharge for any Orders placed under the minimum
Order value.
2.11 The Customer must review all invoices issued by OA and advise OA of any
errors or omissions before the invoice due date. If the Customer does notadvise OA of any errors or omissions by the invoice due date, the invoice isdeemed valid and the Customer accepts liability for the invoice in full.
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3.1

3.2
3.3

3.4

3.5
3.6
3.7

3.8

Payment Terms
The Customer agrees to pay OA the Price in full in accordance with the invoiceterms upon the Delivery of the Goods and/or Services to the Customer, unlessthe Customer has completed and returned a Credit Application Form to OA
and OA has agreed to extend credit to the Customer, in which case, theCustomer agrees to pay the Price in full to OA on or before the last day of themonth following the date of invoice or as otherwise agreed in writing with OA.
Payment for the Customer’s first Order shall be made in full in advance before
shipment of the Goods or provision of Services.
If OA agrees to extend credit to the Customer, the Customer agrees to the[Terms stated in the Credit Application Form as forming part of the Terms andConditions of the Agreement]. Notwithstanding any credit Terms given to theCustomer, OA may decline to provide Goods and/or Services on credit to theCustomer at any time without notice to the Customer.
Payments are to be made via bank transfer, electronic funds transfer,
EFTPOS or credit card.
(a) American Express payments, made via SimplyPaid, incur a 2.4%
surcharge (including GST).
(b) Bank Account transfer payments, made via SimplyPaid, incur a $0.55
charge per transaction.
(c) Credit / Debit Card payments, made via SimplyPaid, incur a $0.30
charge per transaction.
Payments are to be made to OA in full without deduction or set off against thePrice, whether legal or equitable.
If any part of an amount owing to OA is at any time overdue, then the wholeamount owing to OA at that time is deemed immediately due and payable.
An event of default (“Event of Default”) is deemed to have occurred under thisAgreement or any other agreement between the parties where:(a) any amount is outstanding and due and payable by the Customer to
OA;(b) OA obtains unfavourable reports on the financial standing of the
Customer (and the Customer hereby authorises OA to conduct credit
checks on the Customer);(c) the Customer ceases to trade;(d) an application is made to wind up or place the Customer into insolvency
or external administration;(e) an order is made for the Customer to be wound up, deregistered or
dissolved;(f)the Customer becomes bankrupt, insolvent, enters into administration
or receivership; or(g) any other event that indicates that the Customer may not be able to pay
their debts to OA as they fall due.
OA may elect to suspend some or all of its obligations under this Agreement

until full payment is received from the Customer. OA is not liable to theCustomer for any Claim, Loss or damage the Customer suffers because OA
exercised its rights under this subclause.
3.9 The Price is exclusive of GST, freight and Delivery charges, unless statedotherwise. The Customer is liable for any GST, freight and Delivery charges.
The Customer must pay to OA any GST, freight and Delivery charges, at thesame time and in the same manner as the first payment of the Price in respectof any Goods and/or Services is made by the Customer to OA.
3.10 All financial institution duty, stamp duty, Government charges or direct costsof any kind associated with the operation of the Customer’s account, will becharged to the Customer.
3.11 Prices, fees and charges are subject to change without notice.
3.12 Without limiting the ability of OA to recover all amounts owing to OA under
this Agreement, the Customer authorises OA to charge any amounts owing
to OA under this Agreement to any credit card or account details provided by
the Customer to OA. The maximum chargeable would be in accordance witha signed and agreed Credit Limit.
3.13 Time for payment is of the essence. A grace period of 15 days is granted
before the account is placed on hold.
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4.2

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5.1

5.2

5.3

5.4

5.5

Interest and Debt Collection
Interest on overdue invoices or accounts shall accrue daily from the datewhen payment becomes due, until the date of payment, at the standard
contract default rate prescribed by the Queensland Law Society from time totime and such interest shall compound monthly until the invoice or account issettled in full.
Should the account be referred to a collection agency, the Customer shall pay
a 15% collection fee plus any and all costs associated with the recovery ofthe debt including without limitation debt collection, outsourcing and legal
costs on an indemnity basis should OA take legal action, whether outside or
through the Courts and Tribunals.
Title and Risk
The Customer acknowledges and agrees that no title to the Goods shall passto the Customer until payment of all monies owed to OA has been received infull by OA.
Risk of Loss or damage to the Goods will pass to the Customer at the time of
dispatch from OA’s nominated warehouse. OA shall not be responsible for
any Loss or damage to the Goods in transit. Insurance for Goods in transit to
the Customer will not be arranged by OA. The Customer shall be responsible
for the insurance of Goods in transit.
Until the Price has been paid in full:(a) legal ownership of Goods shall remain with OA;(b) OA may enter the Customer’s premises (or any premises where theGoods are located), [without notice and without liability for trespass or
any resulting damage and may retake possession of the Goods]. All
costs and expenses incurred by OA as a result of taking action to retake
possession of the Goods, together with transportation and storage
charges, must be paid by the Customer to OA on demand provided that:•
the Customer or the Customer’s representative is present;
and•OA complies with Customer’s reasonable requirements at
the location of Goods and does not create unreasonabledisruption to the Customer; and•the removal is carried out in a reasonable manner; and•reasonable notice has been given of OA intention to remove
the Goods.”(c) OA may keep or resell any repossessed Goods;(d) if the Customer resells Goods without first having paid OA for them, theCustomer shall hold that part of the proceeds of the sale, which
represents the invoiced Price of Goods, in a separate identifiableaccount as the beneficial property of OA and shall pay the amount to
OA on request;(e) notwithstanding anything contained in subclauses 5.3(a)-(d) (inclusive),
OA shall be entitled to maintain its legal rights against the Customer for
the Price of the Goods; and(f)
The Customer grants OA a lien on a purchase money security interest
basis in and to all of the right, title, and interest of the Customer in theGoods purchased until full payment has been made.
Until such time as the Customer becomes the owner of the Goods, theCustomer will:(a) store the Goods separately and marked on premise;(b) ensure the Goods are kept in original condition;(c) secure the Goods from risk, damage or theft; and(d) keep the Goods fully insured against all common business risks under
the Customer’s and OA’s name. The Customer shall provide proof ofsuch insurances to OA if requested.
Where the Customer makes a new product from the Goods, whether deemed
as finished or not, or the Customer mixes the Goods procured to create analternate product, the Customer agrees:(a) that, until payment of all sums owing to OA is received, the ownershipof the new product passes to OA;(b) that, until payment of all sums owing to OA is received, these new
products will be held in trust for OA; and(c) should the Customer die, withhold payment or call a meeting of its
creditors, become insolvent, declare bankruptcy, enter into liquidation,
has a wind-up application lodged against it or has an administrator
appointed, OA may, without prejudice to its other rights under thisAgreement, require payment or repossess the Goods.
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5.6

5.7

5.8

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6.1

6.2

6.3

6.4

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7.1

8
8.1
8.2

9
9.1
9.2
9.3
9.4
9.5

9.6

9.7

The Customer acknowledges and agrees that OA may apply to register asecurity interest in the Goods at any time before or after Delivery of the Goods.
The Customer waives its rights for whichever Territory relevant to thisAgreement (either section 157 of the Personal Property Securities Act 2009(Cth) (“PPSA AUS”) for Australia, or section 148 of the Personal Property
Securities Act 1999 (“PPSA NZ”) For New Zealand), to receive notice of any
verification of the registration (as applicable).
If the Customer defaults in the performance of any obligation owed to OA
under these Terms and Conditions, or any other agreement with OA to supply
Goods to the Customer, OA may enforce its security interest in any Goods by
exercising all or any of its rights under the Terms and Conditions or the PPSAAUS and/or the PPSA NZ, whichever is/are applicable. .
To the maximum extent permitted by law, the Customer and OA agree thatthe following provisions of the PPSA AUS do not apply to the enforcement by
OA of its security interest in the Goods: sections 95,125,130,135,142 and 143.
Further, where the Territory applicable to this Agreement is New Zealandwhether partly or in whole, then the following provisions of the PPSA NZ also
do not apply to the enforcement by OA of its security interest in the goods:
sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129 and 131, 133 and134.
Intellectual Property
The supply of Goods and/or Services to the Customer does not constitute atransfer of OA’s Intellectual Property, or the Intellectual Property in the Goods
and/or Services or any part thereof of such rights, to the Customer and allsuch rights are reserved to the true and lawful owners.
The Customer shall not do anything to infringe OA’s Intellectual Property, or
engage in the disassembly, deconstruction or reengineering of OA’sIntellectual Property.
Where OA is the manufacturer or contract manufacturer of Goods and/or
Services which contribute to the Customer’s design and specifications, theCustomer indemnifies OA against all Claims, Losses, damages and costs that
OA or related parties may suffer as a result of a Claim by a third party.
The Customer indemnifies OA with respect to any infringement of OA’sIntellectual Property. The Customer shall be responsible for any Claims,
Losses, damages and costs incurred as a result from any infringement
relating to an agreement between OA and the Customer. OA reserves theright to terminate any agreement in relation to any such infringement.
Security and Charge
Despite anything to the contrary contained herein of any other rights which
OA may have:(a) where the Customer and the Guarantor (if any) is the owner of land,
realty or any other asset capable of being charged, both the Customer
and the Guarantor agree to mortgage and/or charge all of their joint
and/or several interests in the said land, realty or any other asset to OA
or OA’s nominee to secure all amounts and other monetary obligations
payable under these Terms and Conditions;(b) the Customer and the Guarantor (if any) acknowledge and agree that
OA (or OA’s nominee) shall be entitled to lodge a caveat. The Customer
and Guarantor shall give their written consent in registrable form to thelodgement of a non-lapsing caveat immediately on OA’s request andthe Customer and Guarantor shall not object to the lodgement or
upholding of said caveat or take any steps to have any such caveat
removed from the land titles office register. This caveat shall bewithdrawn once all payments and other monetary obligations payable
hereunder have been met; and(c) should OA elect to proceed in any manner in accordance with thisclause and/or its sub-clause, the Customer and Guarantor (if any) shallindemnify OA from and against all of OA’s costs and disbursements,
including legal costs on a solicitor and client basis. The Customer andGuarantor (if any) agree to irrevocably nominate, constitute and appoint
OA or the OA’s nominee as the Customer’s and Guarantor’s true andlawful attorney to perform all necessary acts to give effect to theprovisions of this clause.
Credit Limit
The approval of any credit limit or facility to a Customer is an indication only
of OA’s intention at that time and is revocable at will.
For the avoidance of any doubt, OA may at any time at its sole, absolute andunfettered discretion vary and/or withdraw any credit limit or facility extended
to a Customer without any Claim, Loss or liability to OA from the Customer or
any other party whatsoever.
Delivery
Any timeframes quoted by OA for the Delivery of Goods are estimates only.
OA shall not be liable for delay or any failure or inability to deliver.
OA shall not be liable for any Claim, Loss or damage whatsoever due to failure
by OA to deliver the Goods promptly or at all.
The failure of OA to deliver shall not entitle the Customer to treat thisAgreement as repudiated.
OA reserves the right to withdraw an Order Confirmation at any time before
the Delivery Time and will not be liable for any Claim or Loss whatsoever
arising from its failure to deliver any or all of the Goods.
Any term of this Agreement relating to the quantity of Goods is not theessence of the Agreement. OA reserves the right to make partial deliveries
against an Order and to invoice each partial Delivery separately and theCustomer cannot reject Goods on the basis of partial Delivery.
Where Goods remain in the possession of OA after the Delivery Time(including where the Customer fails for whatever reason to take Delivery of

the Goods), OA is entitled to charge the Customer for all Losses occasionedby the Customer in not accepting Delivery, in respect of the carriage, care andcustody of the Goods.
9.8 Unless otherwise agreed by OA, all Goods will be delivered to the Delivery
Address.
9.9 The Customer must ensure that it or its employees or agents are inattendance at the Delivery Address at the agreed time or agreed period to
accept Delivery of the Goods and to acknowledge receipt upon theconsignment note or invoice accompanying the Goods.
9.10 The Customer warrants that the persons at the Customer’s delivery address
who signs the Delivery notice is authorised to receive the Goods on theirbehalf.
9.11 A quantity, description, date and place of Delivery, as indicated on OAs
invoice or dispatch note, shall be referenced as evidence of quantity,
description, date and place of Delivery of the Goods.
9.12 If the Customer fails to take delivery of the Goods on the specified date, andthe Order is returned to OA, a second delivery charge may be imposed.
9.13 OA may arrange for the storage and carriage of Goods by couriers,
contractors or sub-contractors. Notwithstanding any specific instructions
given by the Customer as to the mode of carriage of Goods, and in theexercise of its absolute discretion, OA may have Goods carried or forwardedby any method which it deems fit.
9.14 Unless otherwise agreed in writing by OA from time to time, the cost of freightof Goods from the OA warehouse shall be paid for by the Customer.
9.15 Unless otherwise specified in a Quote, Goods shall be packed in OA standard
packing. The cost of any special packing and packing materials required by
the Customer shall be at the Customer’s expense.
9.16 A fixed $15.00 surcharge will be payable on the shipment of any dangerous
Goods within an Order or such other surcharge amount as OA may in its
absolute discretion determine is applicable to the Order.
9.17 A fixed surcharge will be payable for any special and/or custom Orders whichalters the original products by slitting, cutting or any other alteration of the
product. Once the Goods are altered, no returns or cancellations will be
accepted unless the Goods are deemed to be faulty.
10 Inspection, Acceptance of Goods and Customer’s Obligations
10.1 The Customer must inspect the Goods within 2 Business Days of the Delivery
Time and, if no inspection is so made, is deemed to have agreed that theGoods are accepted.
10.2 The Customer has no Claim for shortages, defects or any Loss in respect ofGoods apparent on inspection unless a written complaint is made to OA within
3 Business Days of the Delivery Time specifying the shortage or defect.
10.3 OA is, after receipt of the complaint, permitted to inspect the Goods andinvestigate the complaint.
10.4 If a complaint is not made to OA in accordance with subclause 10.2, theGoods delivered will be deemed to be in accordance with the Agreement, andOA will not be held liable for any Claims or future Losses regarding the use
or application of the Goods, and the Customer is bound to pay for themaccordingly.
10.5 Unless you are a ‘consumer’ and mandatory consumer legislation applies,
OA shall not be under any obligation to accept Goods returned by the
Customer.
10.6 Unless you are a ‘consumer’ and mandatory consumer legislation applies, OA
will only accept the return of Goods from the Customer where:(a) the Customer has complied with subclause 10.2 and OA is satisfied as
to the claim by the Customer; and(b) the Goods are returned to OA in the same condition as when firstdelivered to the Customer.
11 Cancellations and Returns
11.1 The Customer shall at no time cancel the whole or part of any Order placed
without OA’s prior approval. The Customer shall not return any Goods without
first providing to OA an original proof of purchase.
11.2 Where the Customer has ordered incorrect Goods, an incorrect item number
for Goods is used, an incorrect unit of issue or pack size is Ordered, an Order
exceeds the Customer’s requirements, an incorrect account number is usedor an Order is duplicated, the Customer may, after receiving written authority
from OA, return the Goods to OA subject to the Goods being returned in thesame condition as when first delivered to the Customer and subject to theCustomer bearing the freight costs of the Delivery and return of the Goods.
11.3 Notwithstanding any other provisions of these Terms and Conditions, theCustomer shall not return any Goods which have been custom made, custom
cut, custom processed or custom acquired.
11.4 The Customer shall in all cases pay to OA a restocking fee of 25% of thegross value of all returns.
11.5 Where Goods are returned to OA in accordance with the provisions of clause
11, OA may issue a credit note in respect of any amounts paid by the
Customer in respect of those Goods, less restocking fee and relevant freightcosts.
11.6 Goods will not be accepted as a return after 90 days post-Delivery.
12 Exclusions
12.1 The Customer shall rely on its own knowledge and expertise in selecting
Goods and/or Services for any purpose, and any advice given by or on behalfof OA shall be accepted at the Customer’s risk.
12.2 OA shall not be liable nor responsible for any failure to comply with any
requirements of the Customer or any other person (whether relating to
manufacture, design, fabrication, transportation, installation, removal and/or
any other particular intended use of the Goods) which are not precisely and
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accurately communicated in writing to OA prior to the Customer making theorder.
12.3 OA shall not be liable nor responsible for any defects or damages caused bymisuse, abuse, neglect, repair, alteration or accident.
12.4 OA shall not be liable nor responsible for any technical advice or assistanceprovided to the Customer in relation to the manufacture or supply of theGoods and/or Services to the Customer, provided that OA has supplied theGoods and/or Services with due care and skill, and any materials supplied inrelation to the Goods and/or Services are fit for the purpose for which they aresupplied.
13 Limitation of Liability
13.1 If the Customer is deemed a “Consumer” under the Competition andConsumer Act 2010 (Cth) (“Australian Consumer Law”), the AustralianConsumer Law may imply into these Terms and Conditions warranties orconditions and impose obligations which cannot be excluded, restricted or
modified and these Terms and Conditions are read subject to such statutory
provisions. All other conditions, warranties, representations, liabilities andobligations, whether implied or imposed by statute, including any conditions
or warranties as to merchantability, fitness for purpose or correspondencewith description, are excluded to the extent permitted by law.
13.2 Equivalently, If the Customer is a ‘consumer’ for the purposes of the New
Zealand Consumer Guarantees Act 1993 (“NZ CGA”), the NZ CGA will give
the Customer certain statutory warranties and guarantees in relation to theGood and/or Services supplied by OA. Apart from clause 13.8, nothing in thisAgreement excludes or limits Customer’s rights under the NZ CGA.
13.3 Subject to clause 13.1 and 13.2, in the event that OA breaches its obligations
under this Agreement or at law, then, to the extent permitted by law, its liability
is limited to any one or more of the following at its sole and absolute discretion:(a) the replacement of the Goods and/or Services or the supply ofequivalent Goods and/or Services;(b) the payment of the cost of replacing the Goods and/or Services or
acquiring equivalent Goods and/or Services;(c) the repair of the Goods and/or Services;(d) the payment of the cost of having the Goods and/or Services repaired;(e) the re-supply of Goods and/or Services; or(f)the payment of the cost of having the Goods and/or Services resupplied to the Customer.
13.4 The total liability of OA under these Terms and Conditions is expressed in thisclause 13 and OA will under no circumstances be liable to the Customer for
any Claim or Loss incurred by the Customer or any other party resulting
directly or indirectly out of the supply by OA to the Customer of any Goods
and/or Services or out of any breach by OA of these Terms and Conditions or
out of the negligence of OA.
13.5 Nothing in these Terms and Conditions shall exclude or modify any
conditional warranty implied by law where to do so would render these Terms
and Conditions void.
13.6 Our Goods come with guarantees that cannot be excluded under the New
Zealand and Australian Consumer Law. The Customer is entitled to a
replacement or refund of the Goods for a major failure of the Goods. 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.
13.7 The Customer agrees to limit any Claim it makes against OA to the cost of
acquiring equivalent Goods.
13.8 Where both parties are ‘in trade’ (within the meaning given to that term by the
NZ CGA), the parties each individually acknowledge: that they are ‘in trade’;
that the Goods and/or Services (including Goods and/or custom made Goods)
are supplied to and acquired by the Customer ‘in trade’ and for a businesspurpose; and that the warranties and guarantees contained in the NZ CGA
will not apply to this Agreement.
14 Force Majeure14.1 OA will not have any liability under or be deemed to be in breach of thisAgreement for any delays or failures in performance of this Agreement which
result from circumstances beyond the reasonable control of OA.
14.2 If OA is affected by such circumstances, then OA shall promptly notify theother party in writing when such circumstances cause a delay or failure in
performance of this Agreement and when they cease to do so.
14.3 If such circumstances continue for a period of more than seven (7) days, OA
may terminate this Agreement by notice to the other party or continue with theAgreement on terms the parties may otherwise agree in writing.
15 Default
15.1 The Customer commits a default or substantial breach of this Agreement if:(a) the Customer commits an Event of Default;(b) the Price or any moneys payable by the Customer under this Agreement
is not paid to OA on the due date;(c) the Customer fails to comply with any Terms and Conditions of thisAgreement which constitutes a breach of a material term of thisAgreement;(d) the Customer fails to follow any reasonable and lawful directions of OA;(e) OA has evidence that the Customer is acting, or has acted, illegally oris, or has, engaged in illegal activity; or(f)
OA has evidence that the Customer has caused a person harm or hascaused, or is intending to cause, OA harm.
15.2 No prior demand is required to be made by OA to the Customer for thepayment or performance of any term of this Agreement.
15.3 If the Customer commits a default or substantial breach of this Agreement,
OA may, by notice to the Customer at its option and without prejudice toanother rights it may have, suspend or terminate an Order, cease further
deliveries and may retain any monies paid by the Customer in relation to theOrder and apply such monies against any Loss or damage incurred by it inrelation to the default or breach by the Customer.
16 Termination
16.1 Without prejudice to any other rights or remedies available to OA, OA may
terminate this Agreement at any time after giving the Customer one (1)months’ notice of termination or without notice if the Customer commits any
default or substantial breach of the Agreement. If either party breaches asimple term of this Agreement and fails to remedy such breach within seven(7) days after service upon it of notice of such a breach, either party may by
notice terminate this Agreement with immediate effect.
16.2 If OA commits a serious breach of this Agreement, the Customer may
terminate this Agreement by giving at least one (1) months’ notice to OA. OA
will be entitled to be paid by the Customer for all Goods and/or Services
supplied, or to be supplied, to the Customer, including the Price, fees andcharges or any Loss incurred by OA in relation to the provision of such Goods
and/or Services, to the date of termination of the Agreement by the Customer.
16.3 Notwithstanding anything elsewhere contained in this Agreement either party
may terminate this Agreement immediately by giving notice to the other party
if the recipient party has breached any Law, then applying to this Agreement
or does any act or omits to do any act that could cause the terminating party
to be in breach of any Law applicable to this Agreement.
16.4 Termination of this Agreement does not extinguish, or otherwise affect, any
rights of any party to this Agreement against the other which:(a) accrued before the time at which the Agreement was terminated; or(b) otherwise relates to or may arise at any future time from any breach or
non-observance of obligations under this Agreement, which arose
before the time at which this Agreement was terminated.
17 Severability
Unenforceability of a provision of this Agreement does not affect the enforceabilityof any other provision. If any provision is void, voidable or unenforceable, it will besevered from the Agreement to the extent of the inconsistency.
18 Notice18.1 A notice or other communication to a party under this Agreement must be inwriting and delivered to that party in one of the following ways:(a) delivered personally; or(b) posted by prepaid post to their address for service (or an address as
notified by the party or the party’s solicitor in writing from time to time)
when it will be treated as having been received on the 20th Business Day
after posting; or(c) sent by email to their email address, when it will be treated as received
when it is transmitted.
18.2 The Customer agrees that it shall be deemed to have notice of any change to
the Terms and Conditions and be bound by any subsequent versions of these
Terms
and
Conditions
as
theyappearonthewebsitehttps://www.orafol.com/en/australia/ whether or not the Customer has actual
notice thereof.
18.3 A copy of any subsequent versions of these Terms and Conditions may also
be obtained on request via telephone or email.
19 Authority
Each party represents and warrants to the other party that it has the power andauthority to enter into and perform this Agreement and to execute the obligations
assumed or imposed upon it under this Agreement. If this Agreement is signed onbehalf of the Customer, then the person signing covenants that they have theauthority to sign this Agreement as a duly authorised agent of the Customer andaccepts personal responsibility for the performance of this Agreement.
20 Assignment and Subcontracting
20.1 OA may assign any or all of its rights and obligations under this Agreement toany other party at any time without the need to notify or obtain the approvalof the Customer.
20.2 OA may subcontract the whole or any part of the provision of Goods and/or
Services under this Agreement to suitably qualified professionals, save that
OA remains liable to the Customer for the Goods and/or Services under thisAgreement.
20.3 The Customer must not, without the prior written approval of OA:(a) mortgage, charge or otherwise encumber the Customer’s rights,
interests or entitlements under this Agreement; or(b) assign the Customer’s rights, interests or entitlements under thisAgreement.
21 Waiver21.1 The failure, delay or omission by a party to exercise any power or rightconferred upon that party by this Agreement will not operate as a waiver ofthat power or right, nor will any single exercise of any power or right preclude
any other future exercise of the power, or the exercise of any other power orright under this Agreement.
21.2 A waiver of any provision of this Agreement, or consent to any departure bya party from any provision of this Agreement, must be in writing and signedby all parties and is effective only to the extent for which it is given.

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22 Relationship of the Parties
Nothing in this Agreement, or any circumstances associated with it or its
performance, gives rise to a joint venture, partnership, employment relationship,
franchise, agency, fiduciary or any other such relationship between the parties. The
relationship between the parties shall at all times be that of independent contractors.
Neither party shall share or be responsible for the debts and liabilities of the otherparty nor have the authority to legally bind the other in any manner.
23 Privacy Policy
The Customer agrees that any personal information, sensitive information and/or
credit-related information about the Customer may be collected, stored, used and/or
disclosed, or otherwise dealt with, in any way permitted under our ORAFOLAustralia Privacy and Credit Reporting Policy (which may be accessed athttps://www.orafol.com/en/australia/ or as otherwise permitted under the Law. By
accepting these Terms and Conditions, the Customer acknowledges and confirmsthat it has read, understood and unconditionally accepts the terms of the ORAFOLAustralia Privacy and Credit Reporting Policy.
24 General
24.1 These Terms and Conditions are subject to change without notice.

24.2 Unless otherwise agreed in writing by OA, at the sole and absolute discretionof OA, the Courts and/or Tribunals of Queensland in Australia will have nonexclusive jurisdiction in relation to all matters whatsoever concerning theseTerms and Conditions. The Customer irrevocably waives any objection to thevenue selected by OA or its subsidiaries in relation to any legal proceedings
concerning these Terms and Conditions. The laws of Queensland chosen by
OA for any such legal proceedings will govern these Terms and Conditions.
24.3 The parties agree that any action arising out of or relating to these Terms andConditions may only be brought before the competent Courts and/or Tribunalsof Queensland in Australia.
24.4 In reselling, maintaining or installing Goods, the Customer is not OA’s agent
or the agent of the manufacturer of Goods.
24.5 The Terms and Conditions of this Agreement including the Confidential
Information are private and confidential and the Customer must not disclose
them unless it is necessary for the provision of professional advice.
24.6 If the Customer now or at any time in the future enters into this Agreement asa trustee, the trustee acknowledges and covenants that all the provisions of
this Agreement are binding on the trustee both personally and in the trustee's
capacity as trustee and are binding on the trustee's successors as trustee ofthe relevant trust fund. The trustee's liability will remain irrespective of any
insufficiency in or lack of recourse to trust assets.

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