1. DEFINITIONS & INTERPRETATION
In these Terms unless the contrary intention appears:
1.1. Affiliate means in relation to a person:
(a) an entity which the person Controls or which is under common Control with the person;
(b) a Related Body Corporate of the person;
(c) an Associate of the person;
(d) a company in which the person beneficially owns 50% or more of the issued shares;
(e) a self-managed superannuation fund of which the person is a member;
(f) a trust of which the person is a beneficiary and from which the person has received 50% or more of the distributions from that trust in the previous three financial years;
(g) a trust of which a Related Body Corporate of the person is the responsible entity, trustee, manager or investment adviser of the trust;
(h) a trust of which the person is a responsible entity, trustee, manager or investment adviser of the trust;
(i) a trust of which the person has Control of the responsible entity, trustee, manager or investment adviser of the trust;
(j) a limited partnership whose general partner is a related body corporate of the person;
(k) a general partnership all of whose general partners are related bodies corporate of the person;
(l) if the person is a limited partnership, general partnership or a trust, a custodian of an asset or assets of the limited partnership, general partnership or trust;
(m) if the person enters into this Agreement a trustee of a trust, a replacement trustee of that trust; or if the person is an individual, the spouse, former spouse, mother, father, brother, sister or child over the age of 18 of the person;
1.2. Agreement means the accompanying quotation/confirmation of sale/invoice and these Terms.
1.3. Associate has the meaning given to it in the Corporations Act
1.4. Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales.
1.5. Buyer means the company named as the purchaser of the Goods .
1.6. Contract means a contract for sale as referred to in clause 3.5.
1.7. Control of a corporation means the power (whether legally enforceable or not) to control, whether directly or indirectly, alone or with its Associates or Related Bodies Corporate:
(a) the composition of its board of directors;
(b) the voting rights of the majority of its voting shares; or
(c) the management of its affairs (including where the board of directors of the corporation is accustomed to act in accordance with the instructions, directions or wishes of the person); of a trust means the power (whether legally enforceable or not) to control, whether directly or indirectly:
(d) the appointment of any new or additional trustee of the trust;
(e) the removal of the trustee of the trust; and/or
(f) the management of the affairs of the trust;
1.8. Corporations Act means the Corporations Act 2001 (Cth)
1.9. Delivery Point means the location for the delivery of Goods as mentioned in the quote.
1.10. Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.
1.11. GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).
1.12. Goods mean the goods as defined by the Seller.
1.13. Insolvency Event means circumstances in which Buyer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Seller; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and/or assets; or (c) seeking protection or granting protection from its creditors, under any applicable legislation or any analogous event in any applicable jurisdiction.
1.14. Order means a purchase order for the Goods which has been accepted by the Seller (in whole or in part) but excluding any terms or conditions printed on or referred to in the Buyer’s purchase orders or other documentation provided by the Buyer unless expressly agreed to in writing by the Seller.
1.15. Price means the prices specified by the Seller.
1.16. Related Body Corporate has the meaning given to that term by section 9 of the Corporations Act
1.17. Seller means QG Bio Plus Pty Ltd ACN 657 970 655 ].
1.18. Terms means these terms and conditions of sale.
2.1. These Terms are the only terms that govern the sale of the Goods by the Seller to the Buyer.
2.2. This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
2.3. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions which do not modify or amend these Terms.
2.4. The United Nations Convention on Contracts for the International Sale of Goods (adopted in Vienna, Austria on 11 April 1980) does not apply to these Terms, any Order or Contract.
2.5. To the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms or a Contract or in connection with the supply of Goods or any services whether under law, statute, custom or international convention are expressly excluded.
3.1. All orders for the Goods must be placed in the manner and form required by the Seller from time to time.
3.2. The Seller may in its absolute discretion determine from time to time a “Specified Order Quantity", being the minimum order value or quantity for each order of the Goods to be supplied to the Buyer.
3.3. All orders will be subject to acceptance by the Seller, which may decline an order or accept an order in whole or part in its absolute discretion. The Buyer acknowledges that acceptance of an order by the Seller will not imply that the Seller will accept any future order(s) placed by the Buyer.
3.4. Once accepted by the Seller, an Order may not be cancelled by the Buyer except with the express consent of the Seller.
3.5. Upon the acceptance of each Order by the Seller, a separate contract of sale will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the extent of the inconsistency.
3.6. For the avoidance of doubt no terms or conditions of the Buyer, including any terms or conditions printed on or referred to in the Buyer’s offer to purchase or order will be binding on the Seller or have any legal effect unless expressly agreed to in writing by the Seller.
4.1. Buyer shall purchase the Goods from Seller for the Price.
4.2. The Buyer must pay GST or any other tax, duty, levy, tariff or charge as applicable to the supply of the Goods in addition to, and at the same time as, payment of the Price. The Seller will provide the Buyer with a tax invoice as required by law.
5. PAYMENT TERMS
5.1. Buyer shall be invoiced for and must pay 60% of the Price as a deposit within 7 calendar days from the date of invoice. The remaining 40% will be invoiced and must be paid within 7 calendar days from the date of invoice unless otherwise agreed to between the parties in writing.
5.2. Buyer shall make all payments hereunder by electronic funds transfer to the account details provided to the Buyer as specified in the invoice.
5.3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller, whether relating to Seller's breach, insolvency, or otherwise, without the Seller’s prior written consent.
5.4. Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
5.5. The Seller may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
5.6. The Buyer shall pay interest on any overdue monies at the 6-month Bank Bill Swap Rate + 5%, calculated from the due date for payment of the outstanding amount until the date of payment by the Buyer. Any payment made by the Buyer will be credited first against any interest that has accrued.
5.7. Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods (under any or all Orders) if Buyer fails to pay any amounts when due hereunder.
6. DELIVERY TERMS
6.1. Any timeframes specified by the Seller for delivery of the Goods are estimates only. The Seller will use its reasonable endeavours to supply the Goods in the quantities specified in the relevant Contract.
6.2. The Seller will not be liable for any loss suffered by the Buyer arising out of any delay or failure to deliver the Goods (or any part of them) or failure to deliver in the requested quantities or for any damage during transit.
6.3. The Seller is entitled to refuse to deliver the Goods to the Buyer if there are any outstanding monies owing to the Seller.
6.4. Delivery of the Goods will be made FOB to a Delivery Point as agreed between the parties in writing and in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by the Seller using Seller's standard methods for packaging and shipping such Goods.
6.5. If the Seller fails to deliver some or all of the Goods pursuant to a Contract, the Buyer will not be entitled to cancel that Contract or any other Order, Contract or delivery.
6.6. The Seller will not be obliged to accept any claims for shortages of deliveries or non-conforming Goods unless written notice of the claim is given to the Seller within 7 Business Days after delivery to the Delivery Point.
6.7. The Seller reserves the right to deliver the Goods by instalments. Each instalment may be invoiced separately and will be deemed to be a separate contract under the same provisions as the main Contract.
6.8. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorization : (i) risk of loss to the Goods shall pass to Buyer ; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
6.9. The Seller may suspend or cancel delivery of the Goods if the Seller reasonably believes that the Goods may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from the Buyer to the Seller remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on the Seller’s part or give rise to any claim by the Buyer.
7.1. The quantity of any instalment of Goods as recorded by Seller on dispatch and the delivery documents from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
7.2. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
8. TITLE AND RISK OF LOSS
8.1. Legal and beneficial ownership in the Goods will not pass to the Buyer until Buyer has paid in full the Price for those Goods, unless stated otherwise in these Terms.
8.2. Risk of loss of or damage to the Goods will remain with the Seller only until the first of the passing of title to the Goods to the Buyer, or delivery of the Goods by the Seller to the Buyer in accordance with clause 6. Thereafter risk of damage to, or loss or deterioration of, the Goods from any cause whatsoever passes to the Buyer.
8.3. Until all outstanding monies have been paid to the Seller for Goods delivered to the Buyer:
a. The Buyer must separately store those Goods in such a way that makes it clear that they are the property of the Seller;
b. in the event of a default (specified in clause 18), the Seller or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by the Buyer to search for and remove any of those Goods without in any way being liable to the Buyer, and may dispose of or retain such Goods as the Seller sees fit without being required to give notice or account to the Buyer. If the Goods or any of them are wholly or partially attached to or incorporated in any other product, the Seller may (when practical) disconnect them in any way necessary to remove the Goods; and
c. all costs and expenses incurred by the Seller as a result of taking action in accordance with clause 8.3.b, together with transportation and storage charges for the recovered Goods, must be paid by the Buyer to the Seller on demand in addition to all other outstanding amounts (including any accrued interest).
8.4. Until title to the Goods passes to the Buyer, the Buyer acknowledges and agrees:
a. that the Goods supplied and not resold are held by it as a bailee for the Seller;
b. The Buyer may resell the Goods without the right of the Buyer to bind the Seller to any liability to any third party (whether contractual or otherwise);
c. any resale of the Goods must only be made on the condition the purchaser is expressly made aware of the existence of the Seller’s rights under this clause 8;
d. if the Goods have been resold by the Buyer, the Buyer will hold so much of the proceeds of sale as does not exceed the outstanding monies owed to the Seller on trust for the Seller immediately when they are receivable or received;
e. when the proceeds held in trust for the Seller under clause 8.4.d are received they must either be paid immediately to the Seller or held in a separate bank account as trustee for the Seller and they must not be used by the Buyer in any other way whatsoever; and
f. the authority conferred on the Buyer by clause 8.4.b may be revoked by written notice from the Seller at any time if the Seller deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default in the performance of its obligations under any Contract, these Terms or any other agreement between the Seller and the Buyer.
9. BUYER WARRANTIES
9.1. The Goods are accompanied by significant claims made based on scientific studies and papers published in peer reviewed journals and independently verified by third parties as being relevant to specific health claims. The Buyer has the right to access these claims on the following basis:
a. the Buyer warrants that the dosage is relevant to the claims being made and is at least the equivalent to the requirement for the claim to be valid;
b. the Buyer warrants that any claims made by it will be inline with any guidelines stipulated by the concerned regulatory authorities;
c. the Buyer warrants that it will not make any other health or related marketing claims in any area other than those that can be independently verified by appropriate and recognised authorities as being valid; and
d. the Buyer warrants that it will not sell, market or position the Buyer’s product made in any way that has a detrimental effect on the ingredients or claims and would lead to the devaluing of the Goods or source through association with or because of the use.
9.2. The Buyer warrants that upon the resale of the Goods, any warranties contained in this clause will form a part of the agreement between the Buyer and the third party to whom the resale is made.
9.3. The Buyer warrants that it will not use the Goods for any product that is potentially harmful to any living being or the environment.
9.4. The Buyer warrants that the Goods will not be sold to a third-party for any further sale. The third-party must be the end consumer of the Goods.
10. PHARMACOVIGILANCE AND RECALLS
10.1. The Buyer agrees to provide to the Seller written reports of all Adverse Events and Goods Technical Complaints regarding Goods and any services (if applicable) relevant to Goods that come to the Buyer’s attention within one (1) Business Day of becoming aware of such events/complaints.
10.2. For the purposes of these Terms:
a. an “Adverse Event” shall mean any untoward medical occurrence in a person that occurs with use of the Goods;
The observation may be reported from any source.
b. “Goods Technical Complaint” is any report (written, electronic or verbal communication) about a potential or alleged failure of the Goods in its quality (including the identify, durability, efficacy or safety) or suspect counterfeit. The complaint may or may not represent a potential risk to the person or animal.
c. The Buyer agrees that, unless otherwise required by law or applicable regulatory authority, the Seller shall be solely responsible for determining if any Goods recall or removal from sale should occur. The Buyer agrees to co-operate to the fullest extent possible to diminish any risk to the public from an Adverse Event or Goods Technical Complaint, including taking the following actions (as directed by the Seller):
i. removing Goods that may be affected from offer for sale to the public;
ii. recalling Goods that may be affected where they have been sold;
iii. complying with all laws, regulations and notice requirements in relation to product recalls;
iv. disseminating information that has been approved by the Seller and which in the Seller’s opinion is necessary or desirable to limit any harm, loss or damage that may be caused in any way in relation to the matter; and
v. complying with any other directions and corrective action required by the Seller or any regulatory authorities in relation to the matter.
11. AMENDMENT AND MODIFICATION
11.1. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
12. LIMITATION OF LIABILITY
12.1. To the extent permitted by law:
a. in no event shall the Seller be liable to the Buyer or any third party for any loss of use, revenue or profit, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not the Seller has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
b. in no event shall the Seller’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to the Seller for the Goods sold hereunder.
12.2. The limitation of liability set forth in clause 12.1(b) above shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
13.1. The Buyer releases and indemnifies the Seller, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of the Buyer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
13.2. The Buyer shall indemnify, defend and hold the Seller, its Affiliates and their respective directors, officers, employees, agents, successors and assigns, harmless from and against any damages, judgments, claims, suits, actions, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with (a) any third party claim of illness, injury, or death caused by the use of any product manufactured by the Buyer; or (b) any proceeding instituted by or on behalf of a third party based upon a claim that the manufacture, use or sale of any product infringes a patent in any country or any other proprietary rights; or any act or omission of negligence, gross negligence or willful misconduct by the Buyer or its respective directors, officers, employees, agents, or representatives.
14. COMPLIANCE WITH LAW
14.1. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect any and all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
14.2. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by the Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.
15.1. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:
a. fails to pay any amount when due under this Agreement and such failure continues for 60 days after Buyer's receipt of written notice of non-payment;
b. has not otherwise performed or complied with any of these Terms, in whole or in part; or
c. becomes subject to an Insolvency event (subject to compliance with any applicable law as to termination).
15.2. Without limiting clause 15.1, if Annexure 1 contains any Specified Order Quantity and such quantity is not met by the Buyer, the Seller reserves the right to terminate this Agreement with immediate effect upon written notice to Buyer.
16.1. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. CONFIDENTIAL INFORMATION
17.1. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this clause. This clause does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18.1. If an Insolvency Event occurs in relation to the Buyer any other event occurs which gives the Seller reasonable grounds for doubting the credit of the Buyer, the Seller may by notice to the Buyer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract (subject to compliance with any applicable law as to termination) or require payment before or on delivery of the Goods (notwithstanding the terms of payment applicable to the Goods), or cancel any undelivered or uncompleted Goods under a Contract, and may retain any monies paid by the Buyer in relation to the Contract and apply such monies against any loss or damage incurred by the Seller in relation to the default by the Buyer.
19. FORCE MAJEURE
19.1. Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
19.2. If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
20.1. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this clause is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. RELATIONSHIP OF THE PARTIES
21.1. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. NO THIRD-PARTY BENEFICIARIES
22.1. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
23. GOVERNING LAW
23.1. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of New South Wales, Australia.
23.2. The Buyer and the Seller irrevocably submit to the exclusive jurisdiction of the courts of the State of New South Wales, Australia.
24.1. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses to such other address as may be notified by a party from time to time to the other party in writing.
24.2. All Notices shall be delivered by, electronic mail, personal delivery, nationally/ internationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).
24.3. If a Notice is received after hours i.e. after 5 PM as per the time of the party to whom the Notice is addressed, the Notice will be deemed to be received at 9 AM o the next Business Day.
24.4. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon proven delivery to the receiving party, and (b) if the party giving the Notice has complied with the requirements of this clause.
25.1. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26.1. Provisions of these Terms which by their nature should apply beyond termination of this Agreement will survive and remain in force after any termination of this Agreement including, but not limited to, the following provisions: Indemnity, Compliance with Laws, Confidential Information, Governing Law, Pharmacovigilance and Recalls, Buyer’s Warranties and Survival.