TERMS & CONDITIONS

TERMS AND CONDITIONS OF SALE

(For customers who purchase goods or services from Stramit)

Stramit Corporation Pty Limited (ABN 57 005 010 195)

Effective Date: 9 November 2023

By submitting an application for a Credit Account and/or ordering Goods from Us, You agree that the following Terms and Conditions of Sale (“Conditions”) will apply to the supply.  

1. DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

(a)   Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977(US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth) and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which We or any member of the We carry on business;

(b)   Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as updated from time to time;

(c)   Australian Standards means the applicable codes and guidelines published from time to time by Standards Australia;

(d)   Consumer Contract means a contract for the supply of goods or services to an individual whose acquisition of the goods or services is wholly or predominantly for personal, domestic or household use or consumption. However, if the relevant parts of the definition of ‘Consumer Contract’ under the Australian Consumer Law are amended at any time, this definition is also amended accordingly; 

(e)   Contract means the contract for the sale and/or supply of Goods between You and Us as set out in clause 2.1;

(f)    Credit Account means, if applicable, the commercial credit account You have with Us under the Contract;

(g)   Due Date means the date You must pay for the Goods as specified on Our invoices in line with the terms of the Credit Account;

(h) Fletcher Group means Fletcher Building Limited (ARBN 096 046 936) and its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth));

(i)    Fletcher Group Member means any member of the Fletcher Group;

(j) Force Majeure Event means any event outside a party’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, epidemic, pandemic, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, any criminal act, effects of a pandemic or epidemic or other similar events beyond a party’s control that may prevent or delay a party from performing their obligations under any Contract;

(k)   Goods means all goods, merchandise and/or services requested by You in any Order and/or supplied by Us to You under a Contract from time to time;

(l)    GST and related terms have the meanings given to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(m)  Guarantors means the guarantors (if any) set out in the Credit Account;

(n)  Insolvency Event means the occurrence of any of the following events in relation to a party: (a) the party becomes insolvent as defined in the Corporations Act 2001 (Cth), states that it is insolvent or presumed to be insolvent under an applicable Law; (b) the party is wound up by resolution or an order of a court or declared bankrupt; (c) the party becomes an insolvent under administration as defined in the Corporations Act; (d) the party becomes subject to one of the forms of external administration provided for in Chapter 5 of the Corporations Act; (e) the party enters into or becomes subject to: (i) any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or (ii) any re-organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors; (f) any application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in any of (b), (c), (d) or (e) above; (g) the party is taken, under section 459F(1) of the Corporations Act, to have failed to comply with a statutory demand; or (h) the party suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business;

(o)   Order means a request by You to Us for the supply of Goods;

(p)   Personal Information has the meaning given in the Privacy Act 1988 (Cth).

(q) PPSA means the Personal Property Securities Act 2009 (Cth);

(r)    Price List means the price list issued by Us from time to time in the particular State or Territory in which an Order is placed;

(s)   Quotation means the verbal or written estimate given by Us for the cost to supply specified Goods, and includes a Price List issued by Us from time to time;

(t)    Small Business Contract has the meaning given to that term in the Australian Consumer Law;

(u) Special Building Products means the Goods, materials and/or products which are purchased, produced or supplied by Us in accordance with a particular design, drawing or specification that is requested by You;

(v) Special Conditions means any special conditions issued by Us from time to time that may apply to a particular transaction;

(w)  “We”, “Us” or “Our” means Stramit Corporation Pty Limited (ABN 57 005 010 195) and any subsidiaries, associated, related and parent companies or businesses, successors or assigns, including the businesses trading as ‘Stramit Building Products’, ‘Integrated Steel Solutions’, ‘Eziform Sheetmetal’ and ‘Taurean Door Systems’; and

(x) You or Your means any individual, company, organisation or any other entity stated in the Contract to whom or to which We supply or offer to supply Goods under these Conditions, including any person, entity or agent acting on their behalf.

1.2  Headings are for convenience only and do not form part of these Conditions.

1.3  Reference to any legislation includes a modification, revision, amendment, re-enactment of, legislation enacted in substitution for, regulation, order-in-council or any other instrument from time to time issued, enacted or made under that legislation.

1.4  Reference to the singular includes the plural and the plural includes the singular.

1.5  The words include and including are not terms of limitation.

1.6  Terms and expressions used in these Conditions that are defined in the Australian Consumer Law, the GST Act or the PPSA have the same meanings respectively given to those terms and expressions in those Acts.

2 GENERAL MATTERS

2.1  The contract between You and Us is constituted by:

(a)   these Conditions;

(b)   the application for a Credit Account;

(c)   any Special Conditions, and

(d)   the extent to which We accept an Order in accordance with clause 3.1

(each a “Contract”).

The Conditions, the application for a Credit Account, the Special Conditions and the extent to which We accept the Order, govern all contracts for the supply of Goods by Us to You and constitute the entire agreement in connection with the supply of Goods between Us and You. To the extent of any inconsistency, the order or precedence set out in this clause 2.1(i) to (iv) applies. All prior representations, trade custom or previous dealings between Us and You are excluded and are not applicable in the interpretation of the Contract. No modification or variation to the Conditions or the application for a Credit Account, any additional terms or conditions or any terms inconsistent with the Conditions or the application for a Credit Account provided by You (whether put forward in the Order, Your specification or otherwise) will bind Us, unless expressly and specifically agreed to in writing by Us. The Conditions and the application for a Credit Account supersede any terms and conditions which have previously governed a contract for the sale of Goods between You and Us. The Condition and application for a Credit Account will prevail to the extent of any inconsistency between them and any quotation, order or other documents from You. The Condition and application for a Credit Account bind you even if you or We do not sign them promptly or at all.

2.2 By placing an Order, or accepting delivery of Goods pursuant to any Order, You are deemed to have read, understood and accepted these Conditions as binding on You.

3. ORDERING AND SUPPLY OF GOODS

3.1 A quotation by Us is an estimate only and will not constitute an offer to sell Goods to You. You may seek to purchase Goods by placing an Order with Us verbally or in writing. An Order constitutes an offer by You to purchase Goods from Us pursuant to these Conditions.  No contract for the supply of Goods will exist between Us and You until Your Order has been accepted by Us  (we may accept or decline, in whole or in part an Order and such acceptance of Your Orders may be made and communicated by Us in writing including an Order acknowledgment or by overt act of acceptance. If only part of an Order is accepted, We will notify You of this. You are deemed to have agreed to only part of the Order being accepted unless written notice is received by Us that You wish to cancel the whole Order within 5 days of the date of issue of Our notice). You will be under no obligation to place an Order with Us. We reserve the right to accept or refuse any Order for Goods or services in our absolute discretion and may make our acceptance of an Order conditional upon the earlier of it receiving a satisfactory credit assessment of You or payment in full (as applicable).

3.2  The parties acknowledge and agree that acceptance of an Order by Us gives rise to a Contract under these Conditions.

3.3  Subject to clauses 3.1 and 13.4, You may not withdraw, cancel or revoke an Order after Our acceptance without Our written consent.

3.4  No Quotation will constitute an offer to supply Goods to You. We reserve the right to alter the quote or price list without notice to You, however such changes will not affect prices which are part of already accepted Orders unless agreed under clause 4.3. We reserve the right to vary or withdraw any Quotation before an Order is accepted.

3.5  You must obtain Our written consent if You wish to resell any Goods online.

3.6  We reserve the right to modify the design of Goods, cease to manufacture or supply Goods or allocate supply of Goods without notice. If the Contract is a Consumer Contract or a Small Business Contract and We modify the design of Goods after we have accepted Your Order for those Goods: (a) We will give you notice of the modification in writing; and (b) You may consider the modification and, if not acceptable, may elect not to proceed with the purchase of Goods ordered before the date of the notice, but which are intended to be subject to the modification.

4. PRICES, GST AND OTHER EXPENSES

4.1  Subject to these Conditions, the price of the Goods will be as agreed between Us and You at the time of Our acceptance of Your Order. The price is exclusive of any freight charges, packing charges, customs duty and GST or similar taxes, which You will pay in addition to the price at the same time and in the same manner as the price.

4.2  Except where expressly agreed otherwise, at any time prior to delivery We may, upon giving You not less than 30 days prior written notice (which You agree may be given by electronic direct mail), vary the prices specified on Your quotation, order confirmation or invoice (as applicable) to reflect our new updated Price List.

4.3  You may consider any variation referred to in clause 4.2 and, if not acceptable, may elect within 10 business days written notice of the variation, not to proceed with the purchase of the Goods ordered before the date of the variation, but which are intended to be subject to the variation. If no written notice is received by us during these 10 business days, You are deemed to accept such variation referred to in clause 4.2.

4.4  Unless otherwise expressly stated, all amounts payable by You for Goods are exclusive of GST.

4.5  If GST is imposed on any supply of Goods made in accordance with a Contract, You must pay to Us an additional amount equal to the GST payable on or for that taxable supply of Goods.  Payment of any GST must be made at the same time as payment for the Goods.

5. PAYMENT AND CREDIT

5.1  Unless otherwise agreed between the parties, payment for Goods is to be made by You on or before the Due Date.

5.2  You authorise Us to open a Credit Account in Your name listed on the application for a Credit Account and to debit the price of the Goods supplied to You and all other amounts owed by You to Us (including fees and interest payable under a Contract).

5.3  Any Credit Account granted by Us must only be used by You and cannot be assigned, transferred or made available for use by any other entity or person (including by a subsequent purchaser of You) without Our prior written consent.

5.4  If You are in default of any payment, We are entitled to:

(a)   charge You a reasonable surcharge for processing payments made by credit card, at an amount advised by Us from time to time;

(b)   charge You interest on all overdue accounts at a rate of 10%, calculated and payable daily and compounded from the due date until the invoice is paid in full. The parties agree that such interest charge is not a penalty;

(c)   require the payment of Goods prior to delivery of any further Goods;

(d)   charge You a reasonable fee where any payment is dishonoured or returned by Your financial provider (or where We are otherwise unable to process any payment from Your financial provider) at an amount advised by Us from time to time; and

(e)   preclude You from participating in any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until Your account is no longer overdue.

5.5  You agree to indemnify Us for:

(a)   all reasonable legal costs, debt recovery fees, collection agency fees and other expenses which are incurred by Us or are likely to be incurred by Us as a result of any breach or negligent act or omission by You arising either directly or indirectly from or in connection with these Conditions including legal fees in the recovery or attempted recovery of any overdue amount for Goods; and

(b)   any stamp duty or other government rates, taxes (including GST) or charges levied on Us in connection with the Credit Account, any Contract for the supply of Goods and any deed of guarantee, indemnity and charge; and

(c)   all costs associated with the registration, maintenance and withdrawal of any Security Interest which secures Your obligations under any part of the Credit Account, Contract and these Conditions and which We consider are reasonably necessary in order to protect Our legitimate interests under the Contract.

5.6  The parties acknowledge and agree that:

(a)   We may apply any payment received from You towards any debt owed by You to Us;

(b)   We may set-off any credit amount that We owe to You against any debt owed by You to Us; and

(c)   You may not withhold payment of any money in respect of any set-off or claim You might have against us without Our prior written consent.

6. DELIVERY

6.1  Unless the method is otherwise agreed between the parties, We may make the Goods available for Your collection or deliver the Goods, including delivery by a third-party carrier and delivery by instalments. Subject to clause 13.4, You will not be entitled to cancel the balance of an Order if We fail to deliver any instalment. 

6.2  You authorise Us to deliver the Goods to the place nominated by You and to leave the Goods at such place whether or not any person is present to accept delivery. We are not obliged to obtain a signed receipt, signed delivery docket or other acknowledgement of the Goods from any person at the nominated place for delivery, but if such signature or acknowledgement is obtained from a person reasonably believed by Us to hold authority to sign for or otherwise take delivery of the Goods, then such signed receipt, signed delivery docket or other acknowledgement will be conclusive evidence of Your acceptance of the Goods delivered.

6.3  You must provide a suitable and safe area at the nominated delivery site to unload the Goods and ensure that Our (or Our agents, employees or contractors) use of the nominated delivery site is compliant with relevant work health and safety legislation.

6.4  You acknowledge and accept that any period or date for delivery stated by Us is intended as an estimate only and is not a contractual commitment. We will not in any circumstances be liable for any loss or damage suffered by You or any third party for failure to meet any estimated date or time for delivery of Goods or performance of services provided such Goods or services are delivered and performed (as applicable) within a reasonable time. Provided delivery is made within a reasonable time You will not have a right to cancel or terminate Your Order or refuse to pay for the Goods.

6.5  Delivery of the Goods is deemed to occur when they are handed to You or Your representative, are delivered to the premises or site nominated by You, or are collected from Us by You or Your representative, whichever occurs first. Subject to the other terms of the Contract, we shall not be liable on any basis whatsoever for loss suffered by You after delivery of the Goods to You.

6.6  You agree to examine the Goods immediately after delivery.

6.7  You must pay and We reserve the right to charge You all costs and fees incurred as a result of:

(a)   any delay in delivery of the Goods which is caused by You or the conditions of the nominated delivery site or the nature of the Goods being delivered;

(b)   any unexpected labour or additional costs in connection with the delivery; and

(c)   any permit or licence or other extraordinary costs of transporting or delivering Goods (including wide or long loads).

6.8  Goods ordered for collection will be held for a maximum period of 10 Business Days after the specific collection date. If the Goods are not collected by that time, they may be delivered to (at Our option) Your site or store or to a store selected by Us and all reasonable costs incurred by Us in relation to the holding and delivery of the Goods will be charged to and be paid by You.

6.9  If You are collecting the Goods You acknowledge and agree that entry onto Our premises by You or Your agents, employees, contractors or other representatives is at Your/their own risk and We will not be liable for any loss, damage or injury caused by any act or omission whatsoever by You or Your agent, employee, contractor or other representative whilst on Our premises.

6.10 You agree to indemnify Us (and Our agents, employees or contractors) from any and all claims, loss and damage caused by You arising out of:

(a)   delivery of the Goods (including any loss or damage caused by delivering the Goods to an unattended site and any loss or damage suffered by Us as a result of any property damage or personal injury caused by the delivery and unloading the Goods);

(b)   Your or Your agent, employee, contractor or other representative’s attendance at Our premises; and

(c)   Your failure to provide a safe, suitable and compliant nominated delivery site in accordance with Clause 6.3.

7. RISK, TITLE AND CHARGE

7.1  Unless otherwise agreed by the parties in writing, all risk in the Goods passes to You upon delivery or collection of the Goods.

7.2  Title to any Goods supplied by Us will not pass to You until all amounts owing by You on any account whatsoever under the Contract have been received by Us.

7.3  Until title in the Goods passes to You, the Goods supplied are held by You for Us as bailee and You must store the Goods separately from Your own Goods and those of any other party in a manner which clearly identifies the Goods as Our property and which ensures the Goods do not become damaged or spoiled. 

7.4  You may resell any Goods before title in the Goods passes to You, provided that You:

(a)   resell any such Goods to a third party in the ordinary course of business;

(b)   act in any such transaction as Our fiduciary agent;

(c)   hold the proceeds of sale of any such Goods on trust for Us and in a separate account with separate records; and

(d)   account to Us in respect of those proceeds or any other payment made by a third party for any sale of the Goods and allow us to inspect any records of any payments.

7.5  We may repossess any Goods (wherever they are located) if any amount due by You in respect of the Goods remains unpaid:

(a)   after the Due Date and You have failed to make such payment within 5 days of the Due Date; or

(b)   where You suffer an Insolvency Event.

7.6  You irrevocably grant to Us or Our agents or any other nominated representative an unrestricted right and licence without notice to enter any premises occupied by You to identify and repossess any of the Goods pursuant to the right in clause 7.5 without in any way being liable to You or any other third party.

7.7  You must insure the Goods, and keep the Goods insured, at Your own cost and expense to the full extent of the price paid or payable for those Goods between the time that risk in the Goods passes to You and the date that title in the Goods passes to You.

7.8  You must indemnify Us in full for any claims, costs or expense incurred by Us in connection with loss or damage occasioned to the Goods between the time that risk in the Goods passes to You and the time that title in the Goods passes to You.

8. APPLICATION OF THE PPSA

8.1  You acknowledge and agree that:

(a)   these Conditions constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and creates a security interest in the Goods supplied by Us from time to time and any proceeds of the sale of the Goods to secure payment for the Goods (“Security Interest”);

(b)   each sale or supply of Goods by Us under these Conditions is subject to the Security Agreement for the purposes of the PPSA; and

(c)   We may lodge a financing statement on the Personal Property Securities Register (“PPSR”) in respect of the Security Interest in the Goods and the proceeds of the sale of the Goods, including as a purchase money security interest (as that term is defined in the PPSA) (“PMSI”), pursuant to these Conditions.

8.2  You must do all such things, provide all such information and sign all such documents as are necessary and reasonably required to enable Us to acquire a perfected Security Interest in the Goods.

8.3  You must not change Your name, change Your structure, status or partnership, or assign or sell Your business to another party, or initiate any change to any registered documentation, or act in any manner which would impact on our registered Security Interest without Our prior written consent. No such event shall affect Your liability under these Conditions, as You are named in any applications for credit, until a new application for credit made in Your new entity name as restructured or changed is received and approved by Us in writing.

8.4  To the extent permitted by law if the PPSA applies You irrevocably waive Your rights to:

(a)   receive notices or statements under sections 95, 118, 121(4), 129, 130, 132(2), 132(4) or 135(2);

(b)   redeem any products under section 142;

(c)   reinstate any Contract under section 143; or

(d)   receive a verification statement as defined in the PPSA.

8.5  If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer). 

8.6  You agree not to exercise Your rights to make any request of Us under section 275(6) of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.

8.7  The parties shall not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances where:

(a)   disclosure is required by sections 275(7)(b) to (e) of the PPSA; and/or

(b)   We disclose information of the kind mentioned in section 275(1) of the PPSA to the extent that We are not doing so in response to a request made by an "interested person" (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.

8.8  Notwithstanding Clause 8.10(a), You shall only authorise the disclosure of information for the purposes of section 275(7)(c) of the PPSA, or request information under section 275(7)(d) of the PPSA, if We approve such disclosure or request for information in writing.

8.9  Nothing in this part will prevent any disclosure of information by Us that We believe is reasonably necessary to comply with any other obligations that We may have under the PPSA.

8.10 If You default in the timely performance of any obligation owed to Us, We may enforce the Security Interest by exercising all or any of Our rights under these Conditions, the general law and the PPSA.

8.11 Nothing in this Clause 8 limits or is limited by any other provision of these Conditions or any other agreement between the parties.

9. BUILDING PRODUCTS AND MANUFACTURE

9.1  No sale under these Conditions constitutes a sale by sample, description or specification. You acknowledge and agree that:

(a)   all samples, descriptions, illustrations and any other specification contained in any of Our Price List, product and service guide, catalogue or advertising material are approximate and may vary from the Goods sold, supplied or produced (within Australian Standards);

(b)   You are liable for ensuring that the Goods are suitable for Your intended use; and

(c)   We are not liable to You for any loss, damage, cost or expense suffered by You as a result of Your reliance upon any such description, illustration, specification or any other characteristic of a sample except to the extent that We have committed an act of negligence, breach of law or breach of a Contract.

9.2  We are not obliged to accept any materials supplied by You for the manufacture of any Special Building Products. If We do accept such materials on Your request then You acknowledge and agree that:

(a)   We make no warranty or representation as to the quality, fitness for purpose or suitability of such materials supplied by You; and

(b)   We are not liable for any failure, delay, loss or damage caused or in connection with any materials supplied by You or any Special Building Products which are manufactured from materials supplied by You.

9.3  Except where the Contract is a Consumer Contract or a Small Business Contract and to the extent permitted by law, You acknowledge and agree that:

(a)   We will not be liable for any lack of fitness for purpose, property damage or personal injury caused by, or any other failure of Special Building Products;

(b)   any skill, judgment, advice, recommendation, information or assistance provided by Us in relation to Special Building Products is so provided in good faith and You do not rely on such skill, judgment, advice, recommendation, information or assistance as to the suitability of any particular purpose of Special Building Products; and

(c)   You will indemnify Us and hold Us harmless from any liability for any loss or damage caused to or suffered by You or any third party as a result of a Special Building Product.

9.4  We reserve the right to:

(a)   charge You, or otherwise recover any reasonable cost We incur, for any necessary testing or inspection of Special Building Products or Goods which are manufactured using materials supplied by You;

(b)   charge You, or otherwise recover any reasonable cost We incur, for Our acquisition and/or use of any tool, equipment, pattern, design, system or any other device of manufacture (“Manufacturing Tools”) required to satisfy, complete or perform an Order made by You in connection with a Special Building Product; and

(c)   hire Manufacturing Tools to You on agreed terms.

9.5  You acknowledge and agree that any charges, costs, payment for charges or costs, or agreement for hire does not vest in You any right of title or intellectual property in the Manufacturing Tools and You may not use the Manufacturing Tools without Our prior written consent.

9.6  You warrant to Us that all drawings and specifications and other design information provided to Us for the manufacture of special orders or tooling are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of a third party.

9.7  You agree to indemnify Us against any claim, demand or suit arising out of any loss, damage or personal injury caused to You, Your agents or employees or any other third party, by a Manufacturing Tool provided by Us.

10. RETURN OF GOODS – CONSUMERS

If You are a Consumer (as defined under Australian Consumer Law), the provisions of this clause 10 apply:

(a) Subject to clause 10(e), unless agreed in writing by Us, We will not accept the return of goods. Goods accepted for return by Us may attract a charge to recover restocking and repackaging charges. The amount of this charge will be determined by Us and recoverable from You.

(b) The proof of purchase from You must accompany all goods returned to Us.

(c)   The goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage in accordance with the Australian Consumer Law. You are 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.  You are entitled to have services re-supplied or be paid for the cost of having the services re-supplied if the services do not comply with the guarantees.

(d) The guarantees under the Australian Consumer Law are given by Us.

(e) If You believe the goods or services do not comply with the statutory guarantees, You must contact Us and the parties may make arrangements for the return of the goods. Any returned goods must be accompanied by proof of purchase. If We agree that the goods or services do not comply with the statutory guarantee We will refund the costs of returning the goods to Us and, in all other respects, act in accordance with its obligations under the Australian Consumer Law.

(f) Subject to clause 10 (d), all other terms, representations, warranties, guarantees and conditions that might otherwise be granted or implied by law are expressly excluded to the maximum extent permitted by law, unless agreed by Us in writing.  We do not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between a supplier and customer by law.

11. RETURN OF GOODS – (NON-CONSUMERS)

If You are not a Consumer (as defined under Australian Consumer Law), the provisions of this clause 11 apply:

(a) Unless agreed in writing by Us, We will not accept the return of goods. Goods accepted for return by Us may attract a charge to recover restocking and repackaging charges. The amount of this charge will be determined by Us and debited to Your credit account.

(b) The proof of purchase from You must accompany all goods returned to Us.

(c) All claims for Our failure to comply with Your order whether due to shortfall, defect, incorrect delivery or otherwise must be made by:

(i) for goods that are delivered as part of a consolidated shed or patio kit set Order (whether these items are across one delivery or a number of deliveries for the same Order) (Consolidated Kit Sets), giving written notice to Us within ten (10) business days from the date of delivery of goods or performance of services; or

(ii) for any product supplied by Stramit not delivered as part of a Consolidated Kit Set, giving written notice to Us within five (5) business days from the date of delivery of goods or performance of services.

(d) If You fail to provide such notice then You will be deemed to have accepted the goods and services.

(e) All terms, representations, warranties and conditions that might otherwise be granted or implied by law are expressly excluded to the maximum extent permitted by law, unless We agree in writing.  We do not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between Us and You by law.

(f) Our liability for breach of a non-excludable condition or warranty is limited at the Our option, to any one of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of providing replacement goods or of acquiring equivalent goods; 

(iv) the payment of the cost of having the goods repaired; or

(v) in the case of services, the re-supply of the services or paying for the cost of re-supplying the services.

12. INDEMNITY

(a)   If you default in the performance or observance of Your obligations under any Contract of which these Conditions form part, then:

i. we will give you notice of such default and request that you remedy any breach within the time stipulated in these Conditions or, if no time is stipulated, a reasonable time; and

ii. if that breach is not remedied within the time stipulated in the notice then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.

(b) Your liability to indemnify us under a provision of the Contract (including these Conditions) will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under Contract or our breach of law has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.

(c) Each indemnity in a Contract is a continuing obligation separate and independent from Your other obligations and survives the termination or performance of any contract of which these Conditions form part.

(d)   For each indemnity in a Contract, we will take steps to mitigate our loss and damage and act reasonably in relation to Your applicable default.

(e)   Without limiting clause 12(a), You indemnify Us for any loss, cost, damage or expense suffered by Us arising from any failure to install the goods in accordance with their applicable installation instructions and manuals provided with the goods or to operate the goods in accordance with their applicable operation instructions and manuals provided with the goods, or in connection with the negligence of You including in relation to the installation or operation of the goods. 

(f) To the extent permitted by law, neither party is liable to the other for:

i. any loss, cost, damage or expense to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any loss, cost, damage or expense beyond the normal measure and beyond that which every plaintiff in a like situation would suffer; and

ii. any loss of revenue, business or profits of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation or any loss of value of intellectual property.

13. VARIATION AND DEFAULT

13.1 We may at any time, and from time to time vary these Conditions, the terms of the Credit Account or a Contract by notice in writing to You. If the Contract is a Consumer Contract or a Small Business Contract, then You may consider the variation and if not acceptable may elect not to proceed with the purchase of Goods ordered before the date of the variation but which are intended to be subject to the variation. If the Contract is not a Consumer Contract or a Small Business Contract, You agree that Goods delivered and services performed and/or ordered after the date of the notice of variation will be subject to the variation and acceptance of the Goods or services or the placing of the order will be deemed to be an acceptance of such varied terms and conditions. 

13.2 The Contract (including these Conditions and the terms of the Credit Account) may not be varied, altered or amended by You unless such variation, alteration or amendment is in writing and signed by or on behalf of Us.

13.3 We reserve the right in Our sole discretion to immediately:

(a)   suspend or cancel delivery of Goods or any current Order(s) for the supply of Goods; and/or

(b)   suspend or terminate Your Credit Account; and/or

(c)   require immediate payment of the balance of any Credit Account, invoices or any other amounts due and payable whether or not the Due Date has expired; and/or

(d)   register a default with any credit reporting agency, where applicable; and/or

(e)   enforce Our rights under any Security Interest; and/or

(f)    suspend or terminate the Contract;

where any of the following occurs:

(g)   any amounts payable for Goods remain unpaid after the Due Date and You have failed to make such payment within 5 days of the Due Date; and/or

(h)  You exceed the limit of Your Credit Account and You have failed to rectify this within 5 days of the date of such exceedance; and/or

(i)    subject to paragraphs (g) and (h), You breach a material term of the Contract; and/or

(j)    either of the parties suffer a Force Majeure Event which delays or prevents performance of the whole or any part of the Contract; and/or

(k)   You suffer an Insolvency Event; and/or

(l)    You allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against Your property including under the PPSA; and/or

(m)  any other circumstances where We are of the reasonable opinion that You are unable to pay Your debts under the Contract as and when they fall due and payable.

13.4 You are entitled to immediately terminate or suspend the whole or any part of the Contract, or Your Credit Account, where:

(a)   the Contract is a Consumer Contract or Small Business Contract; and

(b)   We suffer an Insolvency Event and/or suffer a Force Majeure Event which delays or prevents performance of the whole or any part of the Contract and/or We commit a breach of a material term of the Contract.

13.5 You acknowledge and agree that on termination of the Contract We may recover from You the reasonable cost of materials or Goods acquired for the purpose of future Orders, delivery or supply of Goods to You.

14. NOTICES

14.1 Notices to be given by You to Us may be delivered personally or sent to the National Credit Manager at Our address at PO BOX 1555 Browns Plains, QLD, 4118 or sent by email to Credit@stramit.com.au and unless the contrary is proved the notice will be taken as delivered in the case of mail: on the third business day following posting and in the case of email: immediately provided no notification of sending error is received by You.

14.2 Notices to be given by Us to You may be delivered personally or sent by prepaid post to Your last known address or sent by email to Your last known email address and unless the contrary is proved the notice will be taken as delivered, in the case of mail: on the third business day following posting and in the case of email: immediately provided no notification of sending error is received by Us. Invoices and statements are deemed to be received by You on the third business day after posting.

15. ELECTRONIC EXECUTION

15.1 Each party consents and agrees that this agreement may be executed and delivered:

(a) by any and all parties by way of electronic signature; and

(b) by email or other electronic means and this has the same force and affect as delivery of an original document with original signatures.

15.2 If this agreement is executed by any party by way of electronic signature it must be considered an original and each party consents and agrees to be legally bound by this agreement’s terms and conditions. Each party agrees that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of its electronic signature or any resulting contract between the parties.

15.3 Each party must do all things and execute all documents necessary to give full effect to this agreement.

16. SEVERANCE, TRANSFER AND WAIVER

16.1 If any part of these Conditions (including any provision, part, paragraph, phrase or word) is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation. If that is not possible, it will be severed from these Conditions without affecting the remaining provisions of these Conditions (which will remain in full force and effect).

16.2 Obligations and rights under these Conditions cannot be assigned or transferred to any third party without Our written consent.

16.3 The failure, delay or partial exercise of a party in exercising any right or remedy, or the granting of any indulgence by a party in favour of the other, under these Conditions does not prohibit, affect or constitute a waiver of the parties’ rights and remedies against each other under these Conditions.

17. PRIVACY

17.1 You acknowledge and agree that We may collect Personal Information and credit information about You and Your directors, officers, partners and the Guarantors (each a “Relevant Party”).

17.2 Our Privacy Policy, Credit Reporting Policy and Statement of Notifiable Matters (“Supplier’s Policies”) are available on Our website or upon request to Us and form part of these Conditions.

17.3 Our website may be hosted, or some data may be stored, overseas for reasons of uniformity and convenience for the Fletcher Group. All Personal Information and credit information derived from Australia will still be treated in accordance with the Supplier’s Policies while being stored overseas.

17.4 In accordance with the Supplier’s Policies, You agree that We may use or disclose information to the Fletcher Group and to third parties as set out in Our Privacy Policy.

17.5 You warrant to Us that You have obtained the consent of each of the Relevant Parties to the collection, use and disclosure of their Personal Information and credit information by Us in accordance with this clause 17 and the Supplier’s Policies.

18. TRUST AND TRUSTEES

If You are acting as the trustee of any trust (whether disclosed or not), then:

(a) You declare that it is entering into this Contract both in Your own capacity and as trustee of the trust with the ability to bind and the intention of binding both;

(b) You will be liable both in your own name and as trustee of the trust; and

(c) You acknowledge that the assets of the trust will be available to meet payment and obligations under this Contract, and of the Your accounts.

19. LAWS TO GOVERN PROVISIONS OF AGREEMENT

(a) Unless varied by notice in writing by the Supplier, each Contract will be governed by and construed in accordance with the laws of Queensland. The parties submit to the exclusive jurisdiction of the courts in Queensland.

(b) The parties agree that proceedings may be commenced in any such Court of Queensland and consent to that Court having jurisdiction by virtue of clause 19 (a).

20. ANTI CORRUPTION

20.1 You agree to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause You or Us to breach or commit an offence under any Anti-Corruption Law.

20.2 You warrant and represent that you have not been convicted of any offence, and have not been the subject of an investigation or enforcement proceedings by a governmental, administrative or regulatory body regarding any offence or alleged offence, under Anti-Corruption Laws.

20.3 You must, to the extent permitted by Law, promptly notify Us in writing if You become aware at any time during the term of any Contract that any of the representations or warranties in clause 20.2 are, or might reasonably be expected to be, no longer correct.

Terms and Conditions of Purchase

(For when Stramit is purchasing goods or services from a third party)

The conditions of purchase set out below (Conditions), as amended from time to time, apply to Orders issued for Goods and/or Services to any company, person or other party (Supplier) by Stramit Corporation Pty Limited ABN 57 005 010 195 and/or its subsidiaries including Morinda Australia  Pty Ltd ABN 34 082 051 287, FBHS (AUST) Pty Ltd ABN 83 126 232 504, FBSOL Pty Ltd ABN 75 147 653 825 and S Cubed Pty Ltd ABN 73 147 653 816 (each a Purchaser) where there is no other written agreement between the Supplier and the Purchaser.

The Purchaser is not bound by the Supplier’s terms of sale or any other conditions the Supplier seeks to impose on, or that purport to apply to, the supply of the Goods and/or Services by the Supplier to the Purchaser.  The parties must not amend these Conditions unless recorded in writing and signed by the Purchaser.

These terms and conditions take effect on and from 9 November 2023 (Effective Date).

1. DEFINITIONS

In these terms and conditions, unless the context requires otherwise:

Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which the Purchaser carries on business;

Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as updated from time to time;

Business Day means a day (other than Saturday or Sunday) on which registered banks are open for business in Brisbane, QLD but excludes any day in the period from 24 December in any year to 5 January (both inclusive) in the following year;

Confidential Information means any Personal Information or any information relating to any Fletcher Building Group company which by its nature, or by the circumstances of its disclosure to the holder, is or could reasonably be expected to be regarded as confidential;

Contract means an agreement between the Purchaser and Supplier for the supply of Goods and/or Services constituted by an Order, these Conditions and any variation agreed in writing between the Purchaser and the Supplier;

Delivery Documents means those documents relating to delivery (if any) specified by the Purchaser to the Supplier at or prior to entering into the Contract that are required by the Purchaser at or around the time of Delivery;

Environmental Legislation means all environmental laws;

Environmental Licences means all licences, approvals and permits necessary for each party’s business and operations including, but not limited to, those issued by any governmental, local or planning authority where required by any Environmental Legislation;

ESG Report means a report produced by the Supplier addressing the Supplier’s performance in the areas of environment, social and governance, including but not limited to GHG Emissions, waste management, labour practices and human rights;

Fletcher Building Group means the group of companies comprised of any wholly or partially owned subsidiary of Fletcher Building Limited, wherever incorporated;

GHG Emissions means the parties’ emissions of GHGs from all sources related to the Contract, categorised as Scope 1, 2 and 3 Emissions;

Goods means the goods and any ancillary or associated services (including delivery) described in the Order, if any;

Greenhouse Gases (GHGs) means the gases that trap thermal radiation in the earth’s atmosphere. They are specified by the United Nations Framework Convention on Climate Change in Annex A to the Kyoto Protocol and may be updated periodically;

Law means Commonwealth, state or local government legislation including regulations, by-laws, subordinate legislation.

Modern Slavery Law means:

(a)  the Modern Slavery Act 2018 (Cth) and any law, rule or other legally binding measure of any jurisdiction that creates similar reporting obligations to those set out in the Modern Slavery Act 2018 (Cth); and

(b)  Divisions 270 and 271 of the Commonwealth Criminal Code (as defined in the Criminal Code Act 1995 (Cth)), the Modern Slavery Act 2018 (NSW), and any law, rule or other legally binding measure of any jurisdiction that creates similar offences to those set out in Divisions 270 and 271 of the Commonwealth Criminal Code.

Order means the Purchaser’s purchase order placed or communicated with the Supplier and includes these Conditions;

Personal Information has the meaning given in the Privacy Act 1988 (Cth);

Price means the price for the Goods and/or Services as calculated in accordance with clause 3;

Privacy Law means the Privacy Act 1988 (Cth), the Australian Privacy Principles and any other applicable privacy legislation, common law privacy obligations and any industry code (whether voluntary or not) by which a party is bound;

Road Transport Legislation includes the chain of responsibility laws that apply to the services where they are provided including (without limitation and where applicable) the Heavy Vehicle National Law and all regulations made under it, the Road Traffic (Vehicles) Act 2012 (WA) and Road Traffic (Administration) Act 2008 (WA), the Road Transport Act 2013 (NSW), the Road Safety Act 1986 (Vic), the Transport Operations (Road Use Management) Act 1995 (Qld) and any other comparable legislation in other states or territories where the services are provided, and any regulations made under these Acts;

Scope 1, 2 and 3 Emissions means the three classifications of emissions in The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically;

Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth);

Services means the services described in the Order, if any;

In these terms and conditions: 

(a) words in singular will include the plural and vice versa;

(b) any reference to “including” means “including without limitation”;

(c) a reference to a statute includes all regulations under and amendments to that statute and any statute to the extent passed in substitution for that statute;

(d) if any matter requires agreement between the parties, such agreement must be express and in writing and must be at the absolute discretion of each party;

(e) headings used do not form part of the Conditions and are for convenience only.

Specifications means any technical or other specification relating to the Goods and/or Services referred to in the Order or otherwise provided in writing by the Purchaser to the Supplier;

Supplier Code of Conduct means the code of conduct available at www.fbu.com.

2. TERMS OF AGREEMENT

2.1 Contract: The Contract between the Purchaser and the Supplier for the purchase of Goods and/or Services by the Purchaser from the Supplier comprises:

(a) these Conditions;

(b) any other terms and conditions set out in or incorporated by reference in the Order; and

(c) any other terms and conditions which are imposed by law and which cannot be excluded.

In the event of a conflict between these Conditions and the Order, the Order will prevail.

2.2 Entire Agreement:  These Conditions, together with the documents referred to in clause 2.1, will apply to all orders for the purchase of Goods and/or Services by the Purchaser from the Supplier, and contain the only terms and conditions of purchase to which the Purchaser will be bound in connection with the purchase of Goods and/or Services from the Supplier.  The Purchaser will not be bound by any other terms the Supplier may purport to apply (including on an invoice or other document and whether before or after submission of an Order by the Purchaser) or which are endorsed upon any correspondence or documents issued by the Purchaser, except to the extent that the Purchaser and the Supplier enter into a final, signed agreement relating to the provision of Goods and/or Services by the Supplier to the Purchaser in which case that final, signed agreement will take effect to the exclusion of these Conditions.

2.3 Acceptance:  Without limiting any other mode of acceptance of this Contract exercised by the Supplier, the Supplier acknowledges that by delivering the Goods or performing the Services, the Supplier by such conduct agrees to be bound by these Conditions.

2.4 Amendment:  The Purchaser may change these Conditions from time to time.  These Conditions and any changes to them will be shown on the website www.stramit.com.au, together with the date on which any new terms and conditions become effective.  The Supplier must check this website before entering into a new Contract.  By entering into a Contract after the date upon which the new terms and conditions become effective, the Supplier accepts and is bound by the changed terms and conditions for that Contract and future Contracts.  If the Supplier does not accept the changes to the Conditions, the Supplier may give notice to the Purchaser that it does not wish to supply any further Goods and/or Services.

3. PRICE

3.1 Price of Goods and/or Services supplied:  The Price of the Goods and/or Services will be as set out in the Order.  If no Price is specified in the Order, then the Supplier must confirm the Price with the Purchaser before the supply of the Goods or before commencing the Services.  The Purchaser will not be bound to pay for the Goods and/or Services unless the Purchaser has agreed to the Price in writing before the Goods are supplied or the Services are performed.  The Price set out in the Order or agreed between the Supplier and the Purchaser for a Contract may not be amended without the prior written agreement of the Purchaser. 

3.2 Price: The Purchaser will pay the Price for the Goods and/or Services.  The Price is exclusive of GST but includes all other taxes or duties levied or assessed in connection with the supply of the Goods and/or Services and includes all costs of testing, inspection, labelling, packing and freight and delivery to and off-loading (if required) at the destination as specified in the Order.  If the Purchaser agrees to pay freight and the cost of delivery has not been referenced on the original Order issued by the Purchaser, the Purchaser will issue an amended Order to the Supplier prior to payment for any freight charges. The Supplier agrees that it will not be entitled to any other payments or reimbursements in respect of the Goods and/or Services.

3.3 No less favourable: The Supplier warrants that the Price is no less favourable than the price paid by any other purchaser of the same Goods and/or Services supplied by the Supplier in substantially similar volumes or circumstances.

3.4 No admission: The Supplier acknowledges that any payment made to it by the Purchaser does not imply or constitute an admission on the part of the Purchaser that the Goods and/or Services comply with the Contract or a waiver or release of the Supplier's obligations under the Contract.

4. INVOICES AND PAYMENT

4.1 Invoices:  The Supplier will submit monthly GST invoices to the Purchaser, which invoices will be received by the Purchaser no later than the 5th of each month in respect of Goods and/or Services supplied during the preceding month to the Purchaser.  All invoices must specify the amount payable, state the relevant Order number or numbers, and include reasonable detail of the Goods and/or Services supplied during the relevant period.

4.2 Proof of Insurances Required: The Purchaser will not be required to pay the Supplier’s invoices where the Supplier has not provided the Purchaser with all proof of insurances required under these Conditions.

4.3 Payment Terms:  Unless otherwise agreed to in writing, the Purchaser will pay invoices for Goods and/or Services supplied by the Supplier to the Purchaser 45 days from the end of the month in which the Purchaser received a correctly tendered invoice (unless otherwise agreed in writing between the parties), provided that the Goods and/or Services have been received by the Purchaser at the date of the invoice.  If the Purchaser disputes any amount of an invoice, the Purchaser will pay the non-disputed amount of the invoice on the due date for the invoice.  Payment will be made by direct credit to a bank account nominated by the Supplier.

4.4 Set Off:  The Purchaser may set off any sums due to the Supplier against any costs, expenses or other losses (whether direct or indirect) incurred by the Purchaser as a result of any breach of the Contract or any other Contract between the Supplier and the Purchaser or any other Contract between the Supplier and any other member of the Fletcher Building Group and any losses sustained as a result.

5. PURCHASE OF GOODS AND/OR SERVICES

5.1 Quotes:  A request for quotation by the Purchaser will not constitute an offer to purchase Goods and/or Services from the Supplier.  No contract for the supply of Goods and/or Services will exist between the Purchaser and Supplier until the Purchaser gives the Supplier an Order in accordance with these Conditions and that Order has been accepted by the Supplier (such acceptance of the Purchaser's Order may be made and communicated by the Supplier in writing (including via email) including an order acknowledgment or by overt act of acceptance). 

5.2 Orders: The Purchaser may purchase Goods and/or Services from the Supplier by providing to the Supplier an Order.  Subject to the Supplier’s acceptance of the Order, the date for delivery of the Goods and/or Services will be as specified in the Order.

5.3 Cancellations or Variations: The Purchaser may cancel, or vary, an Order if the Purchaser has provided notice of such cancellation, or variation, to the Supplier at least 10 Business Days prior to the time specified for delivery in such Order and the Supplier has not delivered the Goods and/or Services in accordance with the Contract. The Supplier will be deemed to have agreed to a variation to an Order notified by the Purchaser unless the Supplier provides notice to the Purchaser within 5 days of the date of the Purchaser’s notice written notice that the Supplier does not accept such variation.

5.4 No Exclusivity or Minimum Quantities:  The Supplier acknowledges that the Purchaser may purchase Goods and/or Services from other suppliers, and there is no guarantee of exclusivity or minimum quantity.

6. DELIVERY

6.1 Delivery:  Unless otherwise agreed with the Purchaser, the Supplier must deliver the Goods to or perform the Services at the address specified in the accepted Order by the date stated in the accepted Order.  Time is of the essence. 

6.2 Packing:  The Supplier will pack all Goods properly and securely and so as to protect against damage and deterioration so that they reach their destination in an undamaged condition and ensure that the Delivery Documents accompany each delivery of the Goods.  If the Supplier requires the Purchaser to return any packaging material and/or pallets this must be clearly stated on the applicable delivery note delivered to the Purchaser and any such packaging material and pallets will only be returned to the Supplier at the Supplier’s cost and risk.

6.3 Documents:  The Supplier must quote the Order number and the item number (if applicable) on all documents and packages sent by it to the Purchaser in respect of the Order.  On delivery of each consignment of the Goods and/or at the conclusion of the performance of the Services, the Supplier must deliver to the Purchaser such documents as are required by the Order, including, without limitation, customs export documents (if applicable), advice notes, certificates of conformity, and if the Supplier is not the original manufacturer of the Goods, copies of the original manufacturer’s certificate of conformity together with test figures, etc, where applicable.

6.4 Delivery Notice:  Where the Supplier becomes aware that it will not be able to comply with a specified delivery date as shown on an accepted Order, the Supplier will immediately notify the Purchaser and obtain approval for any change to the original delivery date. If approval is not obtained, the Supplier will use, and be responsible for, any express freight that may be required to guarantee that the product is delivered into the delivery address to meet the required delivery date or the agreed lead-time.  Except where the Purchaser has given approval for a delayed delivery, in the event that delivery is delayed by more than twenty- four (24) hours, the Purchaser will be entitled to cancel the Order or reject the delivery without any liability whatsoever.

6.5 Liability for Late Delivery:  The Purchaser will be entitled to recover from the Supplier as a debt due and payable by the Supplier to the Purchaser, any reasonable costs, expenses or liquidated damages suffered by the Purchaser as a result of the Supplier failing to satisfactorily complete delivery within the agreed timeframe. 

7. RECEIVING GOODS AND/OR SERVICES

7.1 Making Claims: The Purchaser reserves the right to make claims upon the Supplier for any Goods and/or Services which are at the time of delivery or performance, not fit for purpose, not to specification, damaged, defective, short delivered and/or incomplete.

7.2 Packaged Goods:  The Supplier accepts that the contents of Supplier factory packaged Goods may not be checked by the Purchaser at time of receipt but will be checked at time of installation. Claims for damaged and/or defective goods, items short delivered and/or incomplete Goods may be made at that time.

7.3 End Customer Claims:  The Supplier also accepts that claims may be made by the Purchaser for defects at any time within a reasonable period of the end customer becoming aware of such defects.

8. TITLE AND RISK

8.1 Title:  Title in the Goods and/or Services passes to the Purchaser on delivery or as stipulated in the Order.

8.2 Risk:  The Supplier bears all risk of loss and damage to the Goods and/or Services until the Goods and/or Services have been accepted in accordance with clause 8.3 except to the extent such loss or damage is due to the Purchaser’s negligence or breach of the Contract.

8.3 Acceptance:  Where acceptance tests are required for Goods and/or Services and are set out in an Order, acceptance of the Goods and/or Services delivered will be subject to completion of the acceptance tests by the Purchaser.  Where no acceptance tests are required, the Purchaser will have the right to inspect the Goods and/or Services after delivery and acceptance will take place if the Goods and/or Services are satisfactory to the Purchaser on inspection, or, if no inspection is made, the Goods and/or Services will be accepted on the earlier of (a) when they have been taken into final and beneficial use by the Purchaser or (b) twenty eight (28) days after delivery.

If the Purchaser is not satisfied that the Goods and/or Services are delivered in accordance with the Order, the Purchaser may in its absolute discretion (without limiting any other rights or remedies available to the Purchaser):

(a) reject them in whole or in part with no further liability to pay for the Goods and/or Services.  Any sums paid will be returned to the Purchaser on demand within ten (10) days of rejection; and/or

(b) give notice to the Supplier to repair or replace the Goods and/or Services without delay at the Supplier’s expense and risk.

Title and risk in the rejected Goods and/or Services immediately re-vests in the Supplier.  The Supplier is liable for all loss incurred by the Purchaser due to the rejection of the Goods and/or Services.  The Supplier must, at its cost, remove from the rejected Goods and/or Services any of the Purchaser's intellectual property (including names, logos, etc) or any other distinguishing features such as name or symbols.

8.4 No Waiver:  The Purchaser’s acceptance does not limit or waive the Purchaser’s rights to claim from the Supplier for any defect in the Goods and/or Services or failure of the Goods and/or Services to comply with the warranties, requirements or Conditions of the Order. 

8.5 No Security Interests:  Nothing in the Contract creates a Security Interest in the Goods for the Supplier.  The Supplier must not, in any circumstances, register or seek to register an interest in the Goods under the Personal Property Securities Act 2009 (Cth).

9. GST

9.1 Defined Terms: Any expression used in this clause or clause 3 and which is defined in the A New Tax System, (Goods and Services Tax) Act 1999 (Cth) has the same meaning in clause 3 and this clause 9.

9.2 GST Exclusive: With the exception of any amount payable under this clause 9, unless otherwise expressly stated, all amounts stated to be payable by the Purchaser in these Conditions are exclusive of GST.

9.3 Tax Invoices: If GST is imposed on any supply made under or in accordance with these Conditions, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply.  Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with these Conditions, subject to the provision of a tax invoice by the supplier to the recipient.

9.4 GST Registered: If the Supplier is registered for GST it must raise and provide to the Purchaser GST compliant Tax Invoices and Adjustment Notes (accounts) in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth) and as interpreted by GST Rulings and Determinations made by the ATO.

9.5 Not GST Registered: If the Supplier is not registered for GST, it agrees to include its ABN on all invoices and credit notes.  Failure by the Supplier to quote its ABN on its invoices may result in the Purchaser withholding part payment at the top marginal tax rate (plus Medicare Levy) of the total invoice value and remitting this to the ATO as per legislated taxation requirements (PAYG system).

10. SUPPLIER WARRANTIES AND INSURANCES

10.1 Goods Warranties:  Where the Supplier supplies Goods, the Supplier warrants and undertakes that the Goods:

(a) are new and unused;

(b) are of acceptable quality and fit for expected use and purpose, fit for sale to the end customer and fit for any purpose held out by the Supplier or made known to the Supplier in writing at the time the Order is placed or where no purpose is made known, the Goods are fit for the purpose for which such Goods are ordinarily used;

(c) are free from defects in design, material and workmanship;

(d) are of sound design;

(e) are in accordance with the relevant Australian Standards;

(f) will be labelled, marked and packaged in accordance with all applicable laws, and not misbranded or mislabelled;

(g) not be subject to any mortgage, charge, lien, encumbrance, retention of title or other security interest;

(h) are safe, not a risk to human health and not emit or contain any contaminant or hazardous substance;

(i) are free from encumbrances;

(j) will meet the requirements of the Order, including all Specifications contained in the Order or otherwise communicated to the Supplier;

(k) comply with all laws and regulations in the place where the Purchaser is located;

(l) include appropriate and correct warning and instructions; and

(m) comply with any representations, descriptions, samples or other specifications provided by the Supplier in connection with the Goods and/or Services, including as to quality, function, performance or design.

10.2 Services Warranties: Where the Supplier supplies Services, the Supplier warrants and undertakes that:

(a) the Supplier will, and will ensure that its employees and all representatives will, perform the Services in an efficient, proper, and professional manner, in accordance with all applicable law in the place where the Purchaser is located;

(b) any representations, whether oral or in writing, that the Supplier has made to the Purchaser as to the Supplier’s qualifications, experience, capacity to provide the Services and any other relevant matter are true and complete;

(c) the Supplier will supply all materials, equipment and machinery (as applicable) necessary for the provision of the Services, and will ensure that all such materials, equipment and machinery are fit for their intended purpose and comply with all applicable law in the place where the Purchaser is located;

(d) the Supplier and each of its employees and representatives will not use any of the Purchaser’s equipment unless the Purchaser specifically approves such use (which will be solely at the Purchaser’s discretion);

(e) the Supplier will maintain all licences, consents and permits required for the performance of the Services; and

(f) the Supplier, at the Supplier’s own cost, shall make good any errors, defects or omissions in the Services provided to the Purchaser.

The Supplier will perform the Services at the location set out in the Order or as notified to the Supplier by the Purchaser from time to time, as applicable. If the Purchaser notifies of a material change to the location of the Services, the Supplier will be deemed to have agreed to such change unless written notice is received by the Purchaser that the Supplier does not accept the changed location within 3 days of the date of the Purchaser’s notice.

10.3 Supplier Warranties:  The Supplier represents and warrants to the Purchaser, on the date of the Contract and on a continuing basis, that:

(a) the Supplier holds all consents, approvals, permits and licences necessary for the manufacture (if applicable), storage and/or supply of the Goods and/or performance of the Services;

(b) any intellectual property rights or other proprietary rights of any other person will not be infringed by the provision of the Services, the supply of the Goods or the Purchaser’s on-sale or use of the Goods;

(c) the Supplier has the necessary resources (including financial resources) sufficient to enable it to perform its obligations under this Contract;

(d) the Supplier complies with all applicable laws and regulations including the Modern Slavery Law;

(e) the Supplier and its suppliers have, hold and can demonstrate the attributes set out in the Supplier Code of Conduct;

(f) the Supplier will conduct its business with due diligence, in an efficient and environmentally responsible manner, adhering fully to the Environmental Legislation; and

(g) the Supplier will maintain in force, as relevant, all Environmental Licences and shall comply with and observe all conditions and restrictions contained in or imposed by any such Environmental Licences.

10.4 Noncompliance Notice:  The Supplier must promptly notify the Purchaser in writing if any warranty in clause 10.3 changes.

10.5 Accreditation & Markings:  All Goods and/or Services which are classified by Standards Australia must be accredited to the relevant standard and carry the current Standards Australia mark or watermark and license number.  Goods must also be marked with Supplier identification.

10.6 Consumer Guarantees: Where the Purchaser on sells the Goods to a consumer, the Supplier will be liable for all claims, costs, losses or damages that the Purchaser may be responsible for to the consumer under the Australian Consumer Law in respect of those Goods where the Supplier would have the same, or similar, liability under the Australian Consumer Law to:

(a) the Purchaser in connection with the Goods; or

(b) the consumer if the Supplier had sold such Goods directly to the consumer.

10.7 No limitation:  The warranties provided in clauses 10.1, 10.2 and 10.3 are in addition to any obligations that the Supplier owes to the Purchaser that are implied by law, trade, usage or otherwise.  The provisions of this clause 10 will survive termination of the Order and/or Contract, howsoever arising.

10.8 Insurance:  The Supplier warrants that it holds and will maintain:

(a) public and products liability insurance in relation to all supplies to the Purchaser with a reputable insurer for an amount not less than $20,000,000 in respect of any one claim; and

(b) transit insurance for not less than the full replacement value of the Goods and/or Services. 

The Supplier agrees to provide copies of current certificates of currency for the public and products liability insurance referred to in this clause when requested by the Purchaser, detailing the policy number, expiry date and the amount of insurance cover.

11. PRODUCT LIABILITY

11.1 Supplier Indemnity:The Supplier hereby indemnifies the Purchaser for any loss, costs, damages, expenses and injury to property or persons resulting from, arising out of or in connection with a breach by the Supplier of the Contract or an Order or any breach by the Supplier of any applicable law and/or any use or resupply by the Purchaser of the Goods (including breach of the quality warranties set out in clause 10).  In the event that a warranty claim requires the Purchaser or a customer of the Purchaser to repair, replace or reinstall the Goods, the Supplier agrees that all costs relating to or arising out of the required work or replacement will be at the Supplier’s expense.

11.2 Warranty Claims: In the event of a warranty claim by the Purchaser or a customer of the Purchaser, the Supplier agrees, where possible, to inspect the site of the installation within twenty-four (24) hours of the Supplier being notified of the warranty claim.  The Supplier also agrees to respond with a written report to the customer and the Purchaser within five (5) Business Days of the warranty claim notifying the Purchaser and the customer of the Supplier’s decision in relation to the warranty claim.

The Purchaser may, at its option or if requested by the Supplier, inspect the site of the installation of the Goods that are the subject of a warranty claim.  The Supplier agrees to reimburse the Purchaser for the Purchaser’s reasonable costs for conducting such inspection.

12. AUSTRALIAN CONSUMER LAW

12.1 Compliance Essential: It is an essential term of these Conditions that the Supplier complies with the provisions of the Australian Consumer Law.  Without limiting that obligation in any way, the Supplier must comply (and ensure that any manufacturer or other supplier complies) with Section 102 of Schedule 2 of theCompetition and Consumer Act 2010 (Cth) and Regulation 90 of the Competition and Consumer Regulations 2010 (Cth), in relation to any warranty provided by the Supplier, any third party supplier, or the manufacturer of the Goods.  To the extent permitted by law, the Supplier indemnifies, and keeps the Purchaser indemnified against any loss, cost, penalty or claim made against the Purchaser that arises out of or relates to a breach of this clause by the Supplier.

13. SUPPLIER RESPONSIBILITIES

13.1 Compliance with the Order:  The Supplier will provide the Goods to and/or perform the Services for the Purchaser in accordance with the Order.

13.1 Health, Safety and Environment:  The Supplier will:

(a) at all times comply with all directions and applicable laws in the place where the Purchaser is located, including but not limited to those directions, laws and regulations relating to health, safety and environment which are relevant to any of the Goods and/or Services;

(b) not provide any Goods and/or Services which are intrinsically hazardous to life or harmful to the environment without appropriate arrangements being agreed with the Purchaser in advance in writing;

(c) ensure that waste and surplus materials arising from the provision of the Goods and/or Services are disposed of appropriately;

(d) notify the Purchaser as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Goods and/or Services in which the Purchaser will have an interest and must provide the Purchaser on demand with copies of any reports, documents or other material in relation to those safety hazards or issues.

13.2 Employees and contractors:  The Supplier will at all times be responsible for its employees, agents and sub-contractors and will ensure that they, when on the Purchaser’s site (or the Purchaser’s customer’s site), are made aware of and comply with rules, regulations and requirements of that site, copies of which will be provided by the relevant site manager.  The Purchaser will have the right to refuse access to its site to any of the Supplier’s employees, agents and sub-contractors who, in the reasonable opinion of the Purchaser, is not a fit and proper person to have access to the site, or who refuses to comply with the site rules.

13.3 Ethics: The Supplier undertakes it will not:

(a) induce any employee, agent or sub-contractor to the Purchaser to make any concession to or confer any benefit on the Supplier, or to refrain or withhold from doing anything in connection with the Order in return for any gift, money, benefit or other inducement; or

(b) encourage or facilitate an employee, agent or sub-contractor of the Purchaser to commit any act of dishonesty against the Purchaser which may benefit the employee, agent or subcontractor of the Purchaser or be a detriment to the Purchaser, or both.

14. ROAD TRANSPORT LEGISLATION

14.1 Supplier Obligations:The Supplier must:

(a) comply, and ensure that all of its employees, workers, agents and subcontractors comply with all laws that apply to the transport of goods by road including but not limited to mass, loading, dimension, fatigue management requirements and speed compliance requirements of the Road Transport Legislation; and

(b) establish, implement and maintain appropriate policies, procedures and business practices to ensure its business practices comply with the requirements of the Road Transport Legislation.

15. CONFIDENTIALITY AND INFORMATION

15.1 Confidentiality: The Supplier agrees to keep confidential all of the Confidential Information, including the Purchaser’s information concerning or arising from the performance of the Order or otherwise provided by the Purchaser to the Supplier.  This clause does not apply to information which is lawfully obtained from a third party who does not owe an obligation of confidentiality to the Purchaser, is public knowledge, is already known or is otherwise independently developed by the Supplier. 

15.2 No advertisement:The Supplier will not advertise itself as supplying goods and/or services to the Purchaser without the Purchaser’s prior written consent.  The obligations of this clause 15 will remain in force notwithstanding completion, cancellation or termination of the Order. 

15.3 Ownership of information: All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by the Purchaser, shall be the Purchaser’s exclusive property, and shall be used by the Supplier only in performance of the Order. Such property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon the Purchaser’s request, shall be returned to the Purchaser in good condition, normal wear and tear accepted.

15.4 Damages not adequate remedy: The Supplier acknowledges that damages may not be an adequate remedy for any breach of this clause and that the Purchaser may be entitled to equitable relief for any actual or threatened breach of this clause.

16. TERMINATION

16.1 Termination for Convenience: The Purchaser may, at any time, terminate an Order, or this Contract, in whole or in part, without cause, upon written notice to the Supplier. Following any such termination the Supplier must, to the extent specified by the Purchaser, stop all work on the Order, and cause its suppliers and subcontractors to stop work. Any costs for any such termination of the Order or Contract will be limited to actual non-recoverable costs incurred by the Supplier for the relevant Order which the Supplier can demonstrate were properly incurred prior to the date of termination or which are unavoidable and will be incurred after the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services.

16.2 Material Breach: A material breach by either the Supplier or Purchaser of any of the terms of these Conditions will constitute an event of default. On the occurrence of an event of default the non-defaulting party may (without prejudice to any other remedy available to it) in its absolute discretion immediately terminate the Contract (including the Order) by giving written notice to the defaulting party. 

16.3 Default:  Without limiting the foregoing, the Purchaser may terminate the Contract or an Order pursuant to this clause, in whole or in part, if the Supplier:

(a) fails to make delivery of the Goods and/or perform the Services within the time specified in the Order or such other agreed timeframe;

(b) fails to replace defective Goods and/or re-perform the Services in accordance with these Conditions;

(c) fails to comply with any other material terms specified in the Contract;

(d) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit of creditors; or

(e) fails to maintain the warranty set out in clause 10.3(e) regarding the Supplier Code of Conduct.

17. GENERAL

17.1 No assignment, subcontracting or advertising: The Supplier must not assign or subcontract its rights or obligations under the Contract without the Purchaser’s prior written consent.

17.2 Relationship: The Supplier acknowledges that it is not the legal representative, agent, joint venturer or partner of the Purchaser for any purpose and it has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, for or on behalf of the Purchaser or to bind the Purchaser in any respect.

17.3 Waiver:  No waiver of any breach of, or failure to enforce any provision of, the Contract by any party will in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Contract.

17.4 Governing Law:  The Contract will be governed by and construed in accordance with the laws of Queensland.  The parties submit to the non-exclusive jurisdiction of the courts of Queensland.

17.5 Notice to Stramit: Notice to be given by the Supplier to the Purchaser may be delivered personally or sent by electronic transmission to the Purchaser at the following address:

Stramit Corporation Pty Limited
Level 14, 275 Alfred Street
North Sydney NSW 2060
procurement.stramit@stramit.com.au

and unless the contrary is proved will be taken as delivered on the sixth Business Day following posting.  Invoices and statements are deemed received by the Purchaser on the sixth Business Day after posting by ordinary prepaid post.

17.6 Notice to Supplier: Notice to be given to the Supplier by the Purchaser may be delivered personally or sent to the last address supplied by the Supplier and unless the contrary is proved will be taken as delivered on the sixth Business Day following posting. 

17.7 Severance: In the event that the whole or any part or parts of any provisions in the Contract should be held to be void or unenforceable in whole or in part such provision or part thereof will to that extent be severed from that Contract but the validity and enforceability of the remainder of that Contract will not be affected.

17.8 Waiver: A party to the Contract may waive any right or remedy it has under the Contract at any time and will notify the other party in writing of any waiver.

17.9 Consequential Loss: Despite any other provision of these Conditions, neither party is liable to the other for any loss of profit, loss of revenue, loss of use, loss of business, loss of opportunity, loss of goodwill, loss of production or business interruption or any kind of indirect, special or consequential loss or damage.

17.10 Indemnities: Each indemnity provided under the Contract requires the Purchaser to mitigate its loss and the Supplier’s liability will be reduced to the extent any loss or damage arises from or is in connection with any act or omission of a person other than the Supplier. 

17.11 Privity: Where any provision of the Contract is expressed to be for the benefit of any person other than either party, such provision is intended to confer a benefit on such person, enforceable at the suit of that person.

17.12 ESG Reporting: 

The Supplier must, at its cost, provide an ESG Report relating to the performance of this Contract as reasonably requested by the Purchaser in order for the Purchaser to meet the corporate governance requirements imposed on it by the ASX and NZX security listing rules or the Task Force on Climate-related Financial Disclosures from time to time. This clause 17.12 is a material term of this Contract.

17.13 Information and Access: The Supplier must allow the Purchaser to conduct a review or audit of the Supplier’s compliance with the Supplier’s warranties and obligations under the Contract. The Purchaser must provide all such assistance and information as the Purchaser reasonably requests in connection with any such review and audit.

Without limiting the previous paragraph, the Supplier will permit the Purchaser to undertake verification activities to validate the Supplier’s compliance with clause 10.3(e), and the Purchaser must provide all such assistance and information as the Purchaser reasonably requests.

The Purchaser may terminate the Contract pursuant to this clause, in whole or in part, if the Supplier notifies the Purchaser that itself or its suppliers no longer have, hold or can demonstrate the attributes set out in the Supplier Code of Conduct or the results of the Purchaser’s verification under clause 17.13 shows non-compliance with the Supplier Code of Conduct.

18. ANTI-CORRUPTION

18.1 Compliance: The Supplier and Purchaser agree to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause it or the other party to breach, or commit an offence under, any Anti-Corruption Laws. 

18.2 Supplier Warranty: The Supplier warrants and represents that it has not been convicted of any offence and has not been the subject of any investigation or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence, under Anti-Corruption Laws.

19. PRIVACY COMPLIANCE

(a) In supplying the Goods and Services, the Supplier must comply, and ensure that its officers, employees, agents and subcontractors comply with the Privacy Law and do not do anything, which if done by the Purchaser would breach the Privacy Law.

(b) The Supplier will notify the Purchaser if it becomes aware that it may be required to disclose Personal Information by law or to the Australian Information Commissioner.

(c) The Supplier must immediately notify the Purchaser where the Supplier becomes aware of a breach of this clause or the Privacy Laws.

(d) The Supplier indemnifies the Purchaser in respect of any liability, loss or expense incurred arising out of or in connection with a breach of the obligations of the Supplier under the Contract.

(e) This clause will survive the expiration or termination of the Contract.

The terms and conditions set out below (“Conditions”), as amended from time to time, apply to all domestic freight services (“Services”) supplied by any Carrier to STRAMIT CORPORATION PTY LIMITED ABN 57 005 010 195 or any of its Related Bodies Corporate including Morinda Australia Pty Ltd ABN 34 082 051 287, FBHS (AUST) Pty Ltd ABN 83 126 232 504, FBSOL Pty Ltd ABN 75 147 653 825 and S Cubed Pty Ltd ABN 73 147 653 816 (“Company"). The Conditions together with any Purchase Order constitute the terms on which the Services are supplied by the Carrier to the Company.

The Company is not bound by the Carrier’s terms of sale or any other conditions the Carrier seeks to impose on, or that purport to apply to, the supply of the Services by the Carrier to the Company, regardless of whether or not provided before, during or after the provision of any Services.  The parties must not amend these Conditions unless recorded in writing and signed by the Company’s Logistics Manager.

These Conditions take effect on and from 22 May 2024 (“Effective Date”).

1. Definitions

(a) In these Conditions, unless the context requires otherwise:

Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which the Company carries on business.

Business Day means a day (other than Saturday or Sunday) on which registered banks are open for business in Sydney, NSW.

Carrier means the Carrier specified in a Purchase Order and includes any director, officer, employee, agent, contractor, adviser, Related Body Corporate or Related Entity of the Carrier.

Collection Point means the collection address specified in any Purchase Order.

Collection Time means the collection date and time or time window (as applicable) specified in any Purchase Order.

Contract means an agreement between the Company and Carrier for the supply of Services to the Company in accordance with these Conditions including clauses 2(a) and 2(c).

CoR Laws means any laws in relation to safety concerning the carriage of goods by road, including as to mass, dimension, load restraint, speed, fatigue and vehicle standards, roadworthiness and maintenance and including the Heavy Vehicle National Law and Regulations and Road Traffic (Vehicles) Act 2012 (WA).

Costs means all costs, fees, expenses, disbursements, levies, duties and taxes or other amounts which are payable in connection with the provision of the Services by the Carrier.

Delivery Point means the delivery address specified in any Purchase Order.

Delivery Time means the delivery date and time or time window (as applicable) specified in any Purchase Order.

Environmental Legislation means all environmental Laws.

Environmental Licences means all licences, approvals and permits necessary for each party’s business and operations including, but not limited to, those issued by any governmental, local or planning authority where required by any Environmental Legislation.

ESG Report means a report produced by the Carrier addressing the Carrier’s performance in the areas of environment, social and governance, including but not limited to  GHG Emissions, waste management, labour practices and human rights.

GHG Emissions means the parties’ emissions of GHGs from all sources related to this Contract, categorised as Scope 1, 2 and 3 Emissions.

Greenhouse Gases (GHGs) means the gases that trap thermal radiation in the earth’s atmosphere. They are specified by the United Nations Framework Convention on Climate Change in Annex A to the Kyoto Protocol and may be updated periodically.

GST means any form of goods and services tax payable under the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Laws means any statute, ordinance, code, permit, order, licence or other law including regulations under them and any code of practice, practice notes, guidelines, rules, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law and that is considered reasonable industry practice, applicable to the Contract, the Confidential Information, the provision of the Services and any other obligations to be performed under the Contract.

Load Restraint Guide means the National Transport Commission Load Restraint Guide (2018), including any amendment, modification or replacement thereof.

Loss means any costs, losses, penalties, damages, liabilities and expenses (including legal expenses).

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Price means the price or rates payable for the Services either as set out in the Purchase Order or as set out in the rates schedule last approved in writing by the Company’s National Transport Manager.

Privacy Law means the Privacy Act 1988 (Cth), the Australian Privacy Principles and any other applicable privacy legislation, common law privacy obligations and any industry code (whether voluntary or not) by which a party is bound.

Products means any or all of the products specified in any Purchase Order or applicable Carrier quote.

Purchase Order means any purchase order or manifest issued by the Company to the Carrier for Services (including as varied).

Related Body Corporate and Related Entity have the same meaning as under the Corporations Act 2001 (Cth).

Scope 1, 2 and 3 Emissions means the three classifications of emissions in The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically.

Security Interest means a security interest for the purposes of the Personal Property Securities Act 2009 (Cth).

Supplier Code of Conduct means the code of conduct available at https://fletcherbuilding.com/investor-centre/corporate-governance/.  

Transit means the period (a) from the earliest of the time that loading of Products is completed by the Company or the Carrier starts loading any Products (including the performance by the Carrier of any handling of the Products in anticipation of or for the purposes of loading) (b) to the time that (where the Company is to unload or arrange for the Products to be loaded onto a Vehicle) unloading of the Products is commenced by the Company or (where the Carrier is to unload or arrange for the Products to be loaded onto a Vehicle) unloading of the Products is completed at the Delivery Point and completion of unloading is acknowledged by the Company, its customer or a representative of the Company or its customer at the Delivery Point.

Transport Activities and Transport and Journey Documentation have the same meaning as under the Heavy Vehicle National Law.

Vehicle means any vehicle or conveyance (including their equipment such as trailers) used to perform all or any part of the Services, including whether or not owned, leased or hired.

WHS Laws means the Work Health and Safety Act 2011 (NSW), the Work Health and Safety Act 2011 (Qld), the Occupational Health and Safety Act 2004 (Vic) and any other comparable legislation in other states or territories where the Services are provided (including the model work health and safety laws).

(b) The following rules apply in interpreting these Conditions:

(i)words in singular will include the plural and vice versa;

(ii) any reference to “including” means “including without limitation”;

(iii) a reference to a statute includes all regulations under and amendments to that statute and any statute to the extent passed in substitution for that statute;

(iv) if any matter requires agreement between the parties, such agreement must be express and in writing and must be at the absolute discretion of each party;

(v) headings used do not form part of the Conditions and are for convenience only.

2. Terms of Contract

(a) The Contract between the Company and the Carrier for the Services comprises:

(i) these Conditions;

(ii) any other terms and conditions set out in or incorporated by reference in the Purchase Order; and

(iii) any other terms and conditions which are imposed by law and which cannot be excluded.

In the event of a conflict between these Conditions and the Purchase Order, the Purchase Order will prevail.

These Conditions, together with the documents referred to in clause 2(a), will apply to all orders for the purchase of Services by the Company from the Carrier, and contain the only terms and conditions of purchase to which the Company will be bound in connection with the purchase of Services from the Carrier.  For the avoidance of doubt, this Contract does not apply where a current freight services contract is in place between the Carrier and the Company.

(b) Without limiting any other mode of acceptance of this Contract exercised by the Carrier, the Carrier acknowledges that by providing the Services, the Carrier by such conduct agrees to be bound by the Contract.

(c) The Company may change these Conditions from time to time. The Conditions will be shown on the website https://www.stramit.com.au/terms-and-conditions/ together with the date on which any new terms and conditions become effective.  The Carrier must check this website before entering into a new Contract.  By entering into a Contract after the date upon which the new terms and conditions become effective, the Carrier accepts and is bound by the changed terms and conditions for that Contract and future Contracts.  If the Carrier does not accept the changes to the Conditions, the Carrier may give notice to the Company that it does not wish to supply any further Services.

3. Services

3.1 Carrier to provide Services

(a) The Carrier must provide the Services in accordance with the Contract including (as applicable) collecting the Products from the Collection Point by the Collection Time, loading the Products onto the relevant Vehicle at the Collection Point, delivering the Products to the Delivery Point by the Delivery Time and unloading the Products at the Delivery Point.

(b) The Company may cancel or suspend a Purchase Order at any time up to the Collection Time without any cost or liability to the Carrier except for the value of any Services already carried out under a Purchase Order prior to the date of cancellation or suspension.

(c) If the performance of the Services in accordance with any Purchase Order or these Conditions would give rise to a breach of any Laws, the Carrier must immediately notify the Company and not perform the Services until instructed in writing to do so by the Company.

(d) The Carrier acknowledges that the Company may purchase Services from other carriers, and there is no representation or guarantee of exclusivity or minimum quantity or volume.

3.2 Delays

(a) Subject to any other term of the Contract, the Collection Time and Delivery Time are of the essence.

(b) If the Carrier reasonably suspects that it is unlikely to be able to perform the Services by the Collection Time or Delivery Time, the Carrier must notify the Company and provide an explanation and reasons for the delay and any suggestions for any proposed alternative collection or delivery arrangements.

(c) Upon being so notified, or if the Carrier has not, or will not be able to, meet any applicable Collection Time or Delivery Time, and without prejudice to any other rights of the Company, the Company may engage another carrier to provide the Services, in which case the Carrier must at its own cost provide all reasonable assistance to the Company, will not be entitled to any payment for the Services not undertaken and must indemnify the Company upon demand in respect of any additional reasonable costs incurred by the Company, including but not limited to additional freight or charges and any liquidated damages which the Company is required to pay to any customer or third party in respect of any delay.

3.3 Performance of Services

(a) The Carrier must collect the Products from the Collection Point by the Collection Time and deliver them at the Delivery Point by the Delivery Time.

(b) The Carrier must comply with any site rules or procedures applicable at the Collection Point or Delivery Point and must follow all reasonable and lawful instructions of the operator of either point.

(c) If the Company is to load or arrange for the Products to be loaded onto a Vehicle, the Carrier must, prior to the Collection Time, provide the Company with all necessary and reasonable information and instructions in relation to the loading of the Vehicle, including but not limited to a loading plan showing the placement and positioning of the load and all parts thereof on the Vehicle. The Carrier will provide the Company with any reasonable assistance requested by the Company in relation to loading, at the Carrier’s cost.

(d) Prior to departure from the Collection Point, the Carrier must:

(i) Ensure that the Products and quantity of Products loaded (where reasonably able to be visually verified) conforms to the relevant Purchase Order;

(ii) Ensure that the Products are not loaded or carried with any other products or items of whatever nature that might damage, contaminate, taint or otherwise harm the Products;

(iii) Check the Products, including any packaging, for any visible signs of damage. If any damage is detected, it must be recorded in writing by the Carrier and notified to supervising staff at the Collection Point and the Company;

(iv) Ensure that the Products are loaded in accordance with the information, instruction and loading plan provided by the Carrier and do not exceed any relevant Vehicle mass limit;

(v) Restrain the Products safely and in accordance with the Load Restraint Guide;

(vi) Provide any written confirmation of loading, restraint and mass compliance reasonably requested by the Company; and

(vii) Obtain and retain any proof of collection records reasonably requested by the Company.

(e) If the Products are required to be stored by the Carrier during Transit, the Carrier will ensure that any storage premises are safe and suitable for the storage of the Products and will otherwise comply with all Laws relating to the storage of the Products. Prior to storing any Products at any premises not owned or operated by the Carrier, the Carrier must obtain from the operator written confirmation that it waives and will not assert or purport to assert any lien, Security Interest or other right or interest in or over the Products.

(f) At the time of delivering the Products and prior to departure from the Delivery Point, the Carrier must:

(i) Ensure that the Products and quantity of Products unloaded (where reasonably able to be visually verified) conforms to the relevant Purchase Order;

(ii) Check the Products, including any packaging, for any visible signs of damage. If any damage is detected, it must be recorded in writing by the Carrier and notified to supervising staff at the Delivery Point and the Company;

(iii) Obtain a written and signed proof of delivery of the Products and quantity of the Products which conforms to the relevant Purchase Order from the Company, its customer (as applicable) or their representative at the Delivery Point and provide an electronic copy to the Company within 1 Business Day of delivery and as a condition of payment of the Price.

3.4 Carrier warranties

(a) The Carrier warrants that any Vehicle used to perform any part of the Services are at all times - able and suitable to perform the Services, including the loading, handling, securing, carriage and unloading of the Products; maintained, operated and roadworthy, in accordance with any applicable heavy vehicle standards and all Laws; insured for comprehensive and third party liability; registered, in accordance with any applicable heavy vehicle standards and all Laws; driven and operated by a person(s) suitably licensed to operate the Vehicle, including as to the class of Vehicle, in accordance with any applicable heavy vehicle standards and all Laws; subject to regular mechanical, servicing, repair and roadworthiness inspections and works; kept clean and tidy to a high standard, inside and out.

(b) The Carrier warrants that it has and will maintain at all times during the performance of the Services and at its own cost all licences, consents, permits, registrations, approvals and accreditations which are required by Law or are otherwise necessary in order for the Carrier to provide the Services.

(c) The Carrier warrants and will ensure that:

(i) it will perform the Services free of the influence of drugs and alcohol and while medically fit to do so; and

(ii) all Vehicles are fitted with speed limiters and (where required at Law) vehicle monitors such as tachographs or electronic boxes.

(d) The Carrier warrants that it will provide the Services - in a proper, competent, safe and professional manner; with the degree of professional expertise, skill, care and diligence that can reasonably be expected of a professional service Carrier experienced in providing services in the nature of the Services; in accordance with any handling standards and procedures notified by the Company to the Carrier from time-to-time; in a timely and expeditious way; strictly in accordance with all applicable Laws and the requirements of all relevant authorities; in accordance with best industry practice; in accordance with the reasonable directions and requirements and to the reasonable satisfaction of Company.

(e) The Carrier acknowledges and warrants that it must at its sole cost provide all necessary resources, personnel, vehicles, equipment, training, instruction, supervision and processes necessary to provide and perform the Services in accordance with the terms of the Contract.

(f) The Carrier acknowledges and warrants that it will pay all employees and agents in accordance with all relevant Laws.

(g) The Carrier warrants and undertakes to the Company that the Carrier itself and its suppliers have, hold and can demonstrate the attributes set out in the Supplier Code of Conduct.

(h) The Carrier acknowledges and warrants that:

(i) it will conduct its business with due diligence, in an efficient and environmentally responsible manner, adhering fully to the Environmental Legislation; and

(ii) it will maintain in force, as relevant, all Environmental Licences and shall comply with and observe all conditions and restrictions contained in or imposed by any such Environmental Licences.

(i) The Carrier must promptly notify the Company in writing if the warranty in clause 4(g) changes.

4. Price and payment

(a) The Company will pay the Price for the Services. If no Price is specified in the Purchase Order, then the Carrier must confirm the Price with the Company before commencing the Services.  The Company will not be bound to pay for the Services unless the Company has agreed to the Price in writing before the Services are performed.  The Carrier agrees that the Price represents the entire entitlement of the Carrier to payment, compensation or reward for the Services in all circumstances and is inclusive of all Costs.

(b) The Carrier will submit monthly GST invoices no later than the 5^th working day of each month, for all work performed in the preceding month. All invoices must specify the amount payable, state the relevant Purchase Order number or numbers, and include reasonable detail of the Services supplied during the relevant period.

(c) Subject to compliance with clause 3(f)(iii), the Company will pay each invoice in accordance with the payment terms specified in any Purchase Order or, if no payment terms are specified, 62 days from the end of the month in which the Company received a correctly tendered invoice. Payment will be made by direct credit to a bank account nominated by the Carrier.

(d) If the Company disputes any amount contained in an invoice, it must notify the Carrier in writing of the amount and reason for the dispute. The Company will pay the undisputed portion of any invoice, but is not obliged to pay any disputed portion until the dispute is resolved to the Company’s satisfaction.

(e) The Carrier waives and releases the Company from any claim for payment of any Price not invoiced within 6 calendar months from the date of completion of the performance of the Services.

5. GST

(a) Words used in this clause that are defined in the GST Law have the meaning given in that legislation.

(b) Unless otherwise specified, all amounts payable under the Contract are exclusive of GST and must be calculated without regard to GST.

(c) If a supply made under the Contract is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply. The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply. If there is an adjustment to a taxable supply made under the Contract then the Supplier must provide an adjustment note to the Recipient. The amount of a party’s entitlement under the Contract to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.

6. Safety – Work, Health and Safety & Chain of Responsibility

(a) Without limiting any other provision of these Conditions, the Carrier must at all times during the performance of the Services and warrants that it has and will:

(i) Ensure, so far as reasonably practicable, the safety of its Transport Activities (within the meaning of the CoR Laws) and other activities being conducted by its employees and contractors, both on and off any premises operated by the Carrier (within the meaning of the WHS Laws);

(ii) Not do or require or refrain from doing or requiring anything which would directly or indirectly cause or encourage any person to breach any CoR or WHS Law;

(iii) Develop and implement suitable policies and working procedures (including training/education, compliance performance monitoring and reporting) to, so far as reasonably practicable, eliminate or, where not possible, minimise, risks to safety arising from the performance of its activities and to the public arising from the conduct of its Transport Activities;

(iv) Comply with any compliance policy, working practices and policies, instructions or reasonable direction of the Company in relation to compliance with the CoR or WHS Laws;

(v) Comply with any contractor or Carrier management policies and practices implemented by the Company, including attendance and completion of any safety inductions, meetings, seminars or training workshops as required by the Company from time-to-time;

(vi) Manage and retain copies of all safety, Transport and Journey Documentation (as required under the CoR and WHS Laws);

(vii) Promptly advise the Company of any facts or circumstances which come to its attention which may give rise to any breach or allegation of breach of the CoR or WHS Laws, including without limitation any new and unidentified hazard and any warning or caution, request for information or documents, infringement notice, fine or the commencement of prosecution proceedings by any regulatory authority;

(viii) Promptly make available all information or documentation reasonably requested by the Company for the purpose of monitoring or auditing compliance with the provisions of this clause 6, including safety and Transport and Journey Documentation, Vehicles and loads;

(ix) Without limiting any other clause of these Conditions, not engage, instruct or cause any employee or contractor to perform any part of the Services unless it has first satisfied itself that any such person:

(A) has in place or is subject to policies and working procedures to ensure compliance by it with the provisions of this clause 6;

(B) has and will be provided with sufficient information, instruction, training and supervision to ensure compliance by it with the provisions of this clause 6; and

(C) has been provided with a copy of any compliance policy, working practices and policies, instructions, reasonable direction and contractor or Carrier management policies of the Company in relation to compliance with the CoR or WHS Laws.

7. Subcontracting

(a) The Carrier must not subcontract any of its obligations under this Contract.

7.2 Risk and liability

(a) The Carrier is responsible for, bears all liability for and risk of any and all Loss, damage and deterioration to and theft, failure to deliver, short delivery, misdelivery, delay in delivery of the Products and must indemnify and keep indemnified upon demand the Company against all such loss and damage which occurs during Transit or as a result of the Carrier failing to perform any Services within the time required under the Contract.

(b) The liability of the Carrier, howsoever arising under or in relation to the Contract, is not limited or excluded by the provision of any Law and the Carrier hereby waives any such applicable limitation or exclusion to the extent that any such limitation or exclusion can be removed, varied or waived under an express provision of a Law.

7.3 Indemnity and Exclusions

(a) The Carrier indemnifies the Company for any Loss resulting from, arising out of or in connection with a breach by the Carrier of these Conditions or the negligence of the Carrier.

(b) Unless expressly provided otherwise in these Conditions, neither party is liable to the other for any indirect, special or consequential loss or damage which includes loss of profit, loss of revenue, loss of use, loss of business, loss of opportunity, loss of goodwill, loss of production or business interruption or any kind of indirect, special or consequential loss or damage.

(c) Each indemnity provided under these Conditions requires the Company to mitigate its loss and the Carrier’s liability will be reduced to the extent any loss or damage arises from or is in connection with any act or omission of the Company.

8. Insurance

(a) The Carrier must, at its cost, take out before the Collection Time and maintain during the performance of the Services:

(i) public liability insurance with a reputable insurer for an amount not less than $10,000,000 in respect of any one claim; and

(ii) transit insurance for not less than the full replacement value of the Products.

(b) Without limitation, the Carrier must take out and maintain any insurance specified in any Purchase Order.

(c) The Carrier must provide to the Company, upon request, evidence of the currency of the insurance policies taken out and maintained under the Contract.

(d) Compliance with this insurance requirements of this clause 8 will in no way limit the Carrier’s obligations or liabilities under the Contract.

9. Ownership and Security Interests

(a) All Products shall remain the sole and absolute property of the Company as the legal and equitable owner at all times.

(b) Nothing in the Contract creates a Security Interest in the Products for the Carrier. The Carrier must not, in any circumstances, register or seek to register an interest in the Products under the PPSA.

10. Confidential information and Privacy

(a) The Carrier agrees to keep confidential all of the Company’s information (including Personal Information) concerning or arising from the performance of the Purchase Order or otherwise provided by the Company to the Carrier. This clause does not apply to information which is lawfully obtained from a third party who does not owe an obligation of confidentiality to the Company, is public knowledge, is already known or is otherwise independently developed by the Carrier. 

(b) The Carrier will not advertise itself as supplying services to the Company without the Company’s prior written consent.

(c) The Carrier must, in respect of Personal Information collected, stored, held or used in connection with this agreement:

(i) comply with the Privacy Act; and

(ii) cooperate with the Company to resolve any complaint alleging a breach of the Privacy Act in respect of actual or alleged processing of Personal Information by the Carrier.

11. Supplier Code of Conduct Verification & ESG Reporting

(a) The Carrier will permit the Company to undertake verification activities to validate the Carrier’s compliance with clause 4(g), and the Carrier must provide all such assistance and information as the Company reasonably requests.

(b) The Carrier must, at its cost, provide an ESG Report relating to the performance of the Contract as reasonably requested by the Company in order for the Company to meet the corporate governance requirements imposed on it by the ASX and NZX security listing rules or the Task Force on Climate-related Financial Disclosures from time to time. This clause 11(b) is a material terms of the Contract.

12. Termination

(a) A breach by the Company or Carrier of any of the terms of the Contract will constitute an event of default. On the occurrence of an event of default, if a party is insolvent, if the Carrier gives notice under clause 4(h), or if the results of the verification under clause 11(a) shows non-compliance with the Supplier Code of Conduct, the non-defaulting party may (without prejudice to any other remedy available to it) in its absolute discretion by written notice immediately terminate the Contract (including any unfilled Purchase Orders).

(b) Termination of the Contract for any reason will not affect any rights of either party against the other which accrued prior to the time of the termination or the provisions of the Contract which expressly or by their nature survive termination.

13. Other

(a) The Company is not bound by any terms or conditions of the Carrier or any third party whether issued before or after the commencement of the Contract and all of which are expressly excluded, regardless of the Company having been provided with notice of any such terms or accepted or surrendered any document subject to or on which any such terms are printed.

(b) The Carrier must not assign its rights or obligations under the Contract without the Company’s prior written consent.

(c) The Carrier acknowledges that it is not the legal representative, agent, joint venturer or partner of the Company for any purpose and it has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, for or on behalf of the Company or to bind the Company in any respect.

(d) The parties acknowledge and agree that this Agreement is a contract for services and that the real nature of the relationship between them is that of independent contractor and principal. The Carrier is not an employee, agent, officer, partner or joint venturer of the Company. The Carrier is in business on the Carrier’s own account. The Carrier is responsible for the payment of any taxation or levies payable because of its status as an independent contractor, including, but not limited to, any levies, income taxes, fringe benefit taxes, superannuation, payroll taxes and GST.

(e) No waiver of any breach of, or failure to enforce any provision of, the Contract by any party will in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Contract. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

(f) If any term of these Conditions is, or becomes, invalid or unenforceable, for any reason, the relevant term is to be considered to be modified to the extent necessary to remedy the invalidity or unenforceability. If this is not possible, the provision is to be severed from these Conditions, without affecting the validity or enforceability of any other term of these Conditions.

(g) The Company may set off any sums due to the Carrier against any costs, expenses or other losses (whether direct or indirect) incurred by the Company as a result of any breach of the Contract by the Carrier and any losses sustained as a result.

(h) The Contract will be governed by and construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.