Fully Promoted Rockingham

Terms and Conditions of Supply

1. Introduction

1.1 These standard terms and conditions of supply (Terms and Conditions) apply to all supplies of goods or services by The Trustee for Brand Vista Family Trust ABN: 60 499 742 215 Trading as Fully Promoted Rockingham (us / we) to the person or entity acquiring goods and services from us (you / client).

1.2 These Terms and Conditions incorporate and are to be read with the terms of any quotation, letter of engagement or proposal from us (Additional Conditions). The Additional Conditions will prevail to the extent of any inconsistency with these Terms and Conditions.

1.3 No variation of these Terms and Conditions and no terms put forward by you will have any effect unless we agree to them in writing.

2. Orders

2.1 All orders from you for goods or services supplied by us (Products) must be placed by you in the manner and form required by us. All orders for Products placed by you will be subject to acceptance by us. We may decline or accept an order in our absolute discretion. Once we have accepted an order, it may not be cancelled by you except with our express written consent.

2.2 Upon the acceptance of an order by us, a separate contract of sale will arise (Contract). Each Contract will comprise these Terms and Conditions, any Additional Conditions and any other terms set out in the order that may be accepted by us in writing.

2.3 You must provide us with appropriate and timely instructions and all information which could be relevant or necessary for us to provide the Products. You warrant to us that our use of any instructions, information or designs provided by you will not infringe the intellectual property rights of any other person.

3. Fees, price and payment

3.1 The Additional Conditions, our price list or other documentation provided by us will set out the price, fees, rates and charges (Fees) payable by you for the Products or how the Fees will be calculated.

3.2 You must pay GST applicable to the supply of the Products in addition to, and at the same time as, payment of the Fees. We will provide you with a tax invoice as required by law.

3.3 You must pay the Fees in accordance with the payment terms specified in the Additional Conditions. If the Additional Conditions do not specify any payment terms or if we have not agreed to extend credit terms to you, you must pay us:

(a) 50% of the Fees upon the acceptance of the relevant order by us (Deposit); and

(b) the balance of the Fees upon completion of the relevant order.

3.4 You must not withhold payment or make any deduction from the invoiced price or any other amount owing to us from you.

3.5 We may charge interest on any overdue invoices at a rate 2% higher than the rate prescribed under the Penalty Interest Rates Act 1983 (Vic), calculated from the due date for payment of the outstanding amount until payment from you. Any payments you make will be credited first against any interest that has accrued. We may recover from you all legal and other costs we incur arising from any payment default by you and the collection of any overdue money.

4. Delivery, risk and title

4.1 Any delivery or completion dates stated by us for the supply of Products are estimates only. We will use our reasonable endeavours to supply the Products within any stated timeframe but we will not be liable for any loss suffered by you which may arise in connection with any failure by us to deliver the Products (or any part of them) or any failure to deliver the Products in the requested quantities.

4.2 If we agree to deliver the Products to your premises, you must ensure that we have all necessary access to your premises where required to deliver and supply the Products and ensure that location is safe, secure and complies with all health and safety laws.

4.3 If you do not, or indicate that you will not, accept or take delivery of the Products, then the Products will be deemed to have been delivered when we were willing to deliver them.

4.4 To the extent permitted by law, you will be deemed to have accepted that the Products have been supplied by us in accordance with the relevant Contract unless you advise us in writing of any asserted defect in the Products within 48 hours of the delivery of such Products.

4.5 We may refuse to deliver the Products to you if there are any outstanding amounts owed to us by you.

4.6 Legal and beneficial ownership in the Products will not pass to you until you have paid the Fees in full for those Products.

4.7 Risk of loss or damage to the Products will remain with us and will pass to you on the earlier of the passing of title in the Products to you, or delivery of the Products to you.

4.8 Unless otherwise agreed, you must obtain any permits, consents and/or authorisations required (whether or not by law) for the supply and installation of the Products prior to the delivery of the Products. We may refuse to deliver and/or install the Products if we reasonably believe that you have not complied with this clause 4.8.

5. Limitation of liability and indemnity

5.1 Except to the extent permitted by law, nothing in these Terms and Conditions excludes, restricts or modifies any statutory guarantee, warranty or condition implied in any law, including the Competition and Consumer Act 2010 (Cth) or any other applicable law.

5.2 To the extent permitted by law, we exclude all liability in relation to the provision of the Products (whether in contract, tort or otherwise) including all liability for any direct, indirect or consequential loss or damage (including loss of profits) you may suffer.

5.3 To the extent permitted by law, our liability for any breach by us of these Terms and Conditions is limited to, at our election, the supply of the Products again or the payment of the cost of having the Products supplied again.

5.4 You acknowledge that you are solely responsible for any actions or conduct you may undertake because of or in reliance on the Products. You also acknowledge that the Products are based on information and data provided by you to us and we will not be liable or responsible for any actions or conduct you or a third party undertake in reliance upon any incorrect Products which result from you providing incomplete or incorrect information.

5.5 You agree to indemnify us for any loss, damage or cost we may suffer as a result of any breach by you of these Terms and Conditions, any wilful default, negligent act or omission or other unlawful conduct by you, your employees or contractors in relation to the Products. Your liability will be reduced to the extent that the loss, damage or cost is caused by our wilful default or negligent act or omission.

5.6 Without limiting clause 5.5, you agree to indemnify us for any loss, damage or cost we may suffer as a result of any infringement by you, your employees or contractors of our Intellectual Property rights or the Intellectual Property rights of a third party. For the avoidance of doubt, the limitation of your liability under clause 5.5 does not apply to any loss, damage or cost suffered by us as a result of any infringement by you, your employees or contractors of our Intellectual Property rights or the Intellectual Property rights of a third party.

6. Default and termination

6.1 If:

1. you become bankrupt, insolvent, convene a meeting with your creditors or propose or enter into an arrangement with your creditors, or make an assignment for the benefit of your creditors;

2. a receiver, manager, liquidator or similar person is appointed in respect of you or any of your assets; or

3. in our sole opinion, we consider that you will be unable make payments as they become due, then without prejudice to any other rights available to us:

4. all outstanding amounts for Products provided by us (whether invoiced or not) will become immediately due and payable in addition to any interest referred to in clause 3.5; and

5. we may terminate all or part of any Contract which remain unperformed.

6.2 If we accept a request from you to cancel an order under clause 2.2, you must pay us the Fees for Products we have supplied or costs we have incurred in connection with the supply of the Products

6.3 We may terminate all or part of a Contract immediately if we do not have all necessary access to your premises where required to supply the Products or where you have not ensured that location is safe, secure and complies with all health and safety laws. If we terminate under this clause, you must pay the Fees as if we had supplied the Products in full.

6.4 We may terminate a Contract with seven days’ written notice to you. If we terminate under this clause, you must pay us the Fees for Products we have supplied prior to termination.

6.5 You may terminate a Contract with seven days' written notice to us. If you terminate under this clause, you must pay us:

1. the Fees for Products we have supplied prior to termination; and
2. where the relevant order has not been completed, any costs incurred by us in respect of the incomplete parts of the relevant order prior to termination including, without limitation, any raw material and labour costs that we have incurred with the production of the relevant Products.

6.6 You irrevocably authorise us to draw upon the Deposit for any amounts that are payable by you under clauses 6.4 and/or 6.5 above (Termination Fees). For the avoidance of doubt, if the Deposit:

1. is less than the Termination Fees, you remain liable to promptly pay us the shortfall (i.e. the Termination Fees less the Deposit) in accordance with clauses 6.4 and/or 6.5; and

2. is greater than the Termination Fees, we will return the balance of the Deposit (i.e. the Deposit less the Termination Fees) to you after the termination of the relevant Contract.

6.7 We are not liable in any way to the extent that we are prevented from performing our obligations under these Terms and Conditions or any Contract by events beyond our reasonable control including industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of god, acts or threats of terrorism or war. If an event of force majeure occurs, we may suspend or terminate these Terms and Conditions or any Contract by notice to you.

7. PPSA Law

7.1 These Terms and Conditions constitute a security agreement and you grant to us a security interest in:

1. all Products previously supplied by us to you (if any);

2. all Products that may be supplied in the future by us to you;

3. all goods into which the Products are incorporated, processed or comingled; and

4. the proceeds of sale of any of the above,

as security for payment of amounts owing by you to us for all Products supplied and all other amounts payable by you to us and your performance of your other obligations to us.

7.2 You agree:

1. to promptly do all things (including signing all documents) and provide all assistance and information necessary to ensure that we have a perfected first ranking security interest in the collateral referred to in clause 7.1; and

2. that we may register a financing statement or financing change statement at your cost and do anything else required to perfect our security interest in the collateral referred to in clause 7.1

7.3 You must not create, or permit to be created, any security interest in the collateral referred to in clause 7.1 (other than that created under these Terms and Conditions).

7.4 At our request, you must at your own cost promptly do all things necessary (including obtaining any consents necessary) to allow us to enter any premises where the Products are located in order to enforce our security interest in the Products.

7.5 To the maximum extent permitted by law:

1. these provisions of the Personal Property Securities Act 2009 (Cth) (PPSA) do not apply to the security interests granted under this clause: sections 95, 118(1)(b)(i), 121(4), 125, 129, 130, 132(3)(d), 132(4), 142 and 143; and

2. you waive your rights to receive notice from us of a registration event under s 157(1) of the PPSA.

​​​​​​​7.6 Terms used in these Terms and Conditions that are defined in the PPSA and any regulations have the same meaning.

8. Intellectual Property​​​​​​​

8.2 In these Terms and Conditions

1. ‘Intellectual Property’ means all present and future rights conferred under statute, common law or equity, title and interests in and to the inventions, know- how, patents, patent applications, registered and unregistered trademarks, services marks, registered and unregistered designs, look and feel, copyrights, circuit layouts, domain names, internet addresses, computer programs, confidential information, trade secrets, trade or business names, brand names and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields; and

2. ‘Developed Intellectual Property’ means Intellectual Property that is discovered, developed or has otherwise come into existence as a result of, for the purposes of, or in connection with the supply of the Products, a Contract or these Terms and Conditions.

8.2 You agree to grant us a royalty-free licence to:

1. use the Intellectual Property in any designs, drawings, specifications, plans or other material that you have provided to us (Your Materials); and

2. allow our employees and/or contractors to use the Intellectual Property in Your Materials;for the purpose of supplying the Products to you in accordance with each Contract.

8.3 If you do not own the Intellectual Property in Your Materials, you warrant that you have obtained all consents and authorisations required to grant us a sub-licence to use the Intellectual Property in the manner and for the purpose specified in clause 8.2.

8.4 We agree that you continue to own all of your Intellectual Property in Your Materials.    

8.5 Unless otherwise agreed by us in writing:

1. you agree that all Developed Intellectual Property will vest in, and be assigned to, us on creation;

2. you agree to, at your own expense, execute all documents and do all things required to give effect to this clause 8.5, including obtaining as soon as possible and providing to us legally effective releases or assignments to us from any of your employees or contractors in respect of any Developed Intellectual Property;

3. you agree to procure the irrevocable consent of your employees and contractors not to enforce any and all moral rights that those individuals may have, presently or in the future, arising from the supply of the Products or in the Developed Intellectual Property including by executing any moral rights consent required by us; and

4. we will grant you a royalty-free, irrevocable licence to use the Intellectual Property subsisting in Products that we have supplied to you in accordance with these Terms and Conditions.

8.6 You agree that all of our Intellectual Property subsisting in the Products and other information that we make available to you (including Intellectual Property and other information relating to our manufacturing process) remains:

1. our property or the property of our Related Body Corporate (as defined in the Corporations Act 2001 (Cth)); or

2. in our control under licence,

as the case may be.

8.7 Unless otherwise agreed by us in writing, you must not use or disclose our Intellectual Property (including any Developed Intellectual Property) or information for any purpose other than for the purpose of performing your obligations under these Terms and Conditions.

9. Subcontracting

9.1 You agree that we may in our absolute discretion engage a third party to perform all or part of our obligations under each Contract.

10. General

10.1 These Terms and Conditions and each Contract will be governed in accordance with the laws in force in the State or Territory in which our principal place of business is located.

10.2 If you are a corporation or a corporate trustee of a trust, we may request, and you must procure that the directors or principals of that entity enter into a guarantee of the performance of your obligations under these Terms and Conditions and each Contract in a form reasonably required by us.

10.3 A party’s failure or delay to exercise a right or power does not operate as a waiver of the power or right. A waiver is not effective unless it is in writing.

10.4 If any clause of these Terms and Conditions is invalid, void, illegal or unenforceable, it will not affect the validity, existence, legality and enforceability of the remaining terms.

10.5 If you comprise more than one person or entity, each person or entity will be jointly and severally liable for payment of any amounts payable to us and performing all other obligations imposed on you under these Terms and Conditions and each Contract.