1. DEFINITIONS

1.1 In this document, comprising terms and conditions of sale (Terms):

we, our or us means the Lusty Industries and its respective officers, employees, agents, contractors and advisers from whom you are receiving Products or Services; you or your means the purchaser or intending purchaser of the Products or Services from us and includes any agent, contractor or representative of you;

Agreed Basis means at our nominated point of collection or

location; Deliver means: 

(a)  to deliver Products, (as evidenced by Products being available to be unloaded from transport at our intended destination where we are responsible to arrange delivery or available for loading onto transport at our despatch point where you are responsible to arrange for collection, in either case as we notify you on acceptance of the relevant order); or (b) to have completed the supply or performance of Services

(as reasonably determined by us); and Delivery, Deliveries and Delivered shall be construed similarly;

Lusty Industries means Lusty Industries Pty Ltd ACN  003 191 099;

GST, supply, tax invoice and taxable supply have the same meaning as in A New Tax System (Goods and Services) Act 1999 (Cth) and Sales Tax means any tax or levy of a sales, value added or goods and service nature applicable to the sale and/or supply of any Product or Service from time to time under the law applicable to these Terms and includes stamp duty on these Terms or any transaction contemplated by them; law means, other than in clauses 8 or 10, any law, by-law, legislation, rule, standard, regulation, registration, code or relevant good industry practice applicable to goods and services equivalent to, or incorporating, the Products and/or Services;

Lusty Equipment means any point of sale material, equipment or display and demonstration products; 

PPS Law means the Personal Property Securities Act 2009 (Cth) and any regulation made at any time under that act, including the Personal Property Securities Regulations 2010 (Cth) (each as amended from time to time); Products means any goods or products supplied by us to you pursuant to your order; and

Services means any services supplied or deemed to be supplied by us incidental to the Products.

1.2 These Terms apply to the provision or supply of all Products and/or Services by us to you under any order made by you and accepted by us.  They supersede and exclude all prior or subsequent discussions, representations, terms and/or conditions of trade, all prior written or oral agreements and understandings between us and you and any other terms and conditions which you seek to extend to the supply of Products and/or Services by us to you, whether by way of incorporation into your order or otherwise.  

1.3 If there is a written agreement between you and us that expressly refers to, or incorporates, these Terms (including a supply agreement or credit terms), and there is any express inconsistency between that agreement and these Terms, the terms of that agreement apply to the extent of that inconsistency.

1.4 We may, in the course of providing the Products and/or Service, engage third parties.  We are not obliged to tell you about any involvement by third parties.  

1.5 If we supply goods and/or perform services (not being Products or Services) to you or for your benefit and no written agreement or terms and conditions apply expressly to that then the goods are deemed to be Products and the services are deemed to be Services and covered by these Terms.

2. QUOTATIONS, DESCRIPTIONS AND PURCHASE ORDERS 2.1 Supply of some of the Products for resale by you may be subject to additional conditions imposed by the manufacturer of the Products and not set out in these terms and conditions.  If this is the case, we will provide you with the manufacturer’s conditions at the earlier of your expression of interest in supplying those Products or your first order of those Products.  We will not supply Products to you unless you have also accepted any applicable manufacturer’s conditions.  Nothing in these conditions grants you a right to receive Products where you have not accepted the relevant manufacturer’s conditions.

2.2              Your orders must be in writing with a full description of your requests for the Products or Services (or both), the requested date and location of Delivery and must set out a unique order number that is acceptable to us. Where there is no nomination of a location of Delivery the Agreed Basis will apply to your order. Where there is no requested date or period for Delivery then we will Deliver within 14 days of the date we accept your order.

2.3              No quotation given by us constitutes an agreement to supply or provide (or to Deliver) the Products or Services referred to therein.  All quotations are subject to these Terms.  If you wish to purchase Products and/or Services referred to in a quotation you must make an order within the specific period stated in the quotation.  If the quotation is given without specifying a period within which you are to make an order, then the quotation shall lapse 48 hours after we send the quotation.

2.4              We may from time to time provide advice, recommendations and statements with respect to the Products and/or Services.   To the extent permitted by law:  (a)  we do not warrant or guarantee the accuracy or completeness of that advice, those recommendations or statements or the results obtained through the use of the Products or application of the Services;

(b)               we expressly disclaim any liability for any damage to you from reliance on such advice, recommendations or statements; and

(c)               such advice, recommendations and statements are relied on by you at your own risk and you should make other appropriate enquiries having regard to your circumstances. 2.5 Each order by you is an offer to purchase Products and/or Services from us subject to these Terms. No order is binding on us unless and until we accept that order in writing. We need not accept any order.  These Terms are not an express or implied offer by us to supply any good or service to you.

2.6  Once received by us, your order cannot be cancelled without our written consent (even if we haven't accepted the order yet).  In the event we consent to cancellation of an order, you will be charged an administrative fee of $100.00 plus the amount of any costs or damages flowing from your cancellation, including but not limited to repair costs, restocking costs, freight costs, damages for loss of profits and/or costs to replace stock damaged beyond repair.

2.7  We may accept your order in whole or in part. 

3. DELIVERY

3.1 We will make all reasonable efforts to Deliver all Products or Services to you as advised under clause 2.1 and in one delivery (or the minimum number of deliveries required to fulfil that Delivery).  Dates or periods specified for Delivery shall not be of the essence.  If Delivery as advised under clause 2.1 becomes commercially impractical for us (in our reasonable opinion) then we may Deliver the Products to a commercially reasonable substitute Delivery location selected by us.  We will not be liable for any loss or damage (including not being liable for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity) arising or resulting (directly or indirectly) from:

(a)  any delay in Delivery;

(b) part or multiple Deliveries; or (c) any failure to Deliver.

3.2              If you are unable to accept Delivery, we have complete discretion to resell or resupply the Products and/or Services to a third party and you will be liable for any loss incurred by us on that resale or resupply, as well as all storage, Delivery and other logistics costs and any other costs incurred by us in doing so.  If any of the Products, become damaged or are otherwise unsaleable (“Damaged”) as a direct or indirect result of you declining or delaying or being unable to accept Delivery, you shall indemnify us  for all costs and expenses incurred by us in connection with the Damaged Products.

3.3              You must check all Delivery volumes against the delivery documentation and:

(a)               where credit terms apply, if you do not dispute it within 2 days, we are entitled to rely on that documentation in issuing any subsequent tax invoice; and

(b)               where 'cash on delivery' applies, you are deemed to accept that volume is correct.

3.4              You must also inspect all Products Delivered and advise us of any claimed defects in them or their packaging or storage or other dispute. 

3.5              If you do not notify us of any shortage, dispute or defect within 2 days, those Products are deemed to have been delivered by us and accepted by you in compliance with these Terms.

3.6              In no circumstances do we Deliver on a consignment or similar basis.  Delivery must be within Australia to an agreed business address.

3.7              In the event that Products are returned, you will be charged an administrative fee of $100.00 plus the amount of any costs or damages flowing from the return, including but not limited to repair costs, re-stocking costs, freight costs, damages for loss of profits and/or costs to replace stock damaged beyond repair.

4. RISK AND TITLE

4.1 Risk in all Products and Services passes to you on Delivery even though title may not. You are solely responsible for the storage, insurance and application or on-sale of Products at and after Delivery.

4.2 Title in all Products remains with us until such time as full payment is made in cleared funds for all amounts owing by you to us for all Products and Services Delivered by us from time to time.  We may insure Products up to the time of Delivery or the passing of title to you, but you must not assume that we will take out any such insurance.

4.3 You acknowledge that until full payment for all Products and Services Delivered (together with any interest under these Terms) is made, you: 

1. hold all Products as our bailee and you further acknowledge that a fiduciary relationship exists between us and you for this purpose; 
2. must keep the Products fully insured and shall hold the proceeds of insurance, if any, for and to our order until payment is made in full; 
3. you must keep the Products stored separately from all other goods and keep the Products insured for replacement cost and identified (in a way that is obvious to others) as our property; and
4. must not pledge or in any way charge or encumber the Products by way of security for the indebtedness of you or any other person.

4.4 Until such time as title in the Products passes to you, we are entitled to require you at any time to deliver up the Products to us (or as we direct) and if you fail to immediately do so, we may enter any premises under the control of you or your agent where the Products are stored and repossess them. Clauses 4.3 and 4.4 do not apply to the extent that you on-sell the Products in an arm's length transaction (during the ordinary course of your business) to a bona fide third party that is not in any way related to, or subject to similar control to, you and, if sold, are sold for market value.  However, any proceeds from, or asset comprising an amount payable to you by, that third party in respect of that sale or on-sale are held by you as a fiduciary and on trust for us to the extent their value does not exceed the amount you owe us under these Terms. 

5. PRICE AND TAXES

5.1 Unless we have agreed in writing with you a fixed price or fee (or basis for determining such) before or when we accept your order (if we do so), our list prices and fees charged by us at the date of your order apply, and such prices and fees are subject to alteration without notice prior to us accepting your order (unless we state otherwise in our acceptance), or where Delivery is delayed by you, and at our discretion, our list prices and fees charged by us at the date of Delivery apply. 5.2 You are also liable for and responsible to pay all taxes (including any sales, value added or like impositions), levies, duties or fees in respect of each Delivery.  

5.3 Unless otherwise specified by us, any reference to an amount payable or consideration to be provided for a Delivery to be made by us that is governed by or otherwise connected with these Terms is a reference to that amount or consideration excluding applicable GST.

5.4 The amount to be paid or other consideration to be provided to us for any taxable supply we make that is governed by or otherwise connected with these Terms must be increased by an amount equal to any GST that we are or will become liable to pay in respect of that supply so that we retain after payment of GST the amount which we would have been entitled to receive but for our obligations to pay GST.

5.5 If you or we are required (in connection with these Terms) to pay the other by way of a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that other, then the payment must be reduced by the amount of any input tax credit to which that other is entitled for that loss, cost or expense.

5.6 If a Sales Tax other than GST applies, you are liable for it and must pay it provided that if the law requires that we pay it then the same principles as are set out in clauses 6.2 to 6.4 will apply in respect of it so that in effect you bear the burden of it.

5.7 Unless otherwise agreed in writing, all references to amounts of money are references to amounts in Australian currency.

6. INVOICING, PAYMENT AND DEFAULT

6.1 Clause 6.3 does not apply to you to the extent we have extended credit to you (in which case payment of our invoices must be made in accordance with the terms of that credit, whilst it continues to be available to you).

6.2 We will provide a tax invoice for the relevant price and fees applicable to each Delivery prior to, at or after the time of that Delivery. 

6.3 Payment of all tax invoices must be made on receipt in full without deduction, set-off or counterclaim.  You must give us written notice within 14 days of receiving our invoice if you believe that the invoice is not correct.  Your notice must include full details of the error(s) claimed by you.  If an invoice is disputed and that dispute cannot be immediately resolved, we can withhold or defer Delivery pending resolution or partDeliver the undisputed component.  You must make payment of the undisputed amount due on any disputed invoice on the due date.  Upon the dispute being resolved, you will immediately pay to us (within 3 working days) the amount due.

6.4 If: 

1. you default in any payment due to us (including under these Terms) or we conclude that you are likely to, including where you are unable, or state that you are unable, to pay your debts as and when they fall due or where a receiver, receiver and manager, controller, trustee or other insolvency administrator is appointed, or a scheme of arrangement is proposed or approved in respect of you or a mortgagee enters into possession of any of your assets or any similar situation occurs; or
2. you are otherwise in breach of these Terms, the terms and conditions of any credit we extend to you (including where you exceed the credit limit we have allowed you) or any other agreement between you and us, then we may, at our option:

(i) withhold the relevant Delivery together with any further proposed deliveries or cancel any accepted order without notice to you and without prejudice to any other action or remedy which we have or might otherwise have had;  (ii) by notice to you, with immediate effect, terminate any and all rights (whether express or implied) that you may have or believe that you have to place further orders under these Terms;

(iii)              reclaim our Products in your possession or control and may enter the premises where we believe the Products are kept in order to do so; and/or

(iv)              recover from you the cost of repossessing and disposing of the Products or attempting to do so; and all monies owing and outstanding by you to us on any account whatsoever become immediately due and payable (without the requirement for notice from us) and you must pay for any subsequent Deliveries prior to or at Delivery.  We will not be liable to you for any losses you incur as the result of our exercising any of our rights under this clause 6.5 If we believe that we have rights under clause 7.4, you must promptly and reasonably respond to any enquiry from us to clarify this. 

6.6              Without in any way limiting our right to require payment in full on the due date, we may charge interest on overdue accounts at the rate 2% above the overdraft rate charged by the Commonwealth Bank of Australia from time to time.  Interest will accrue daily and compound monthly from the due date until payment has been received by us in cleared funds. 

Payments by you will be applied first to interest accrued and then to the overdue amount.

6.7              Any collection charges, legal expenses (calculated on a full indemnity basis) and commissions or any other expenses incurred by us in attempting to recover from you any payment due to us is payable by you to us on demand by us.

6.8              If you owe us money for any reason and we owe you money in connection with these Terms, we may set off the amount you owe us against the amount that we owe you and pay you the resulting net amount.

7. PPS LAW ASSURANCES 

7.1 If these Terms (or a transaction in connection with them) are or contain a security interest under the PPS Law, you agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purposes of: (a) ensuring that the security interest is enforceable, perfected and otherwise effective;

2. enabling us to apply for any registration, or give any notification, in connection with the security interest so that it has the priority required us; and
3. enabling us to exercise any power in connection with the security interest.

7.2 Without limiting any other provision of these Terms, you agree to waive your right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to any security interest created under these Terms.

8. OUR WARRANTIES AND LIMITATION OF OUR LIABILITY

8.1 Notwithstanding any provision to the contrary in these Terms, these Terms do not exclude or limit the application of any statute (including the Competition and Consumer Act 2010 or equivalent or similar legislation) where to do so would:

(a) contravene that legislation; or (b) cause any part of clause 8 to be void.

8.2 We:

1. warrant that, except as otherwise disclosed, the Products supplied are of merchantable quality and comply with the Product specification;
2. make no representations or warranties concerning fitness for purpose or appropriateness for your needs of any Products or Services, and you must assure yourself of these matters having regard to your circumstances;
3. except as expressly provided in clause 8.2(a), exclude all conditions, warranties, guarantees and representations in relation to the products or their supply implied into these Terms or any of your orders, and regardless of whether or not they have been made to you by or on behalf of us and whether or not we knew or ought to have known that you would rely on them ; and
4. are not and will not be liable for any claim by you for breach of warranty unless notice is given in writing to us within 7 days of Delivery of the relevant Products and/or Services or within any other period prescribed in these Terms. 8.3 To the extent that the Products or Services are not of a kind ordinarily acquired for personal, domestic or household use our liability for any claim in relation to the supply of the Products or performance of the Services or breach of any express provision of these Terms or any law that is preserved by clause 8.1 (other than an implied warranty of title) is limited to the price paid by you for the particular Products supplied by us or Services provided, to which your claim relates, or the direct loss suffered by you, whichever is the less, and at our option, we may:

(a) refund the price of those Products or Services (or offer credit where payment has not then been made); or  (b) replace or rework those Products or reperform those Services, or pay for someone else to do so.

8.4 The remedies provided in these Terms are your sole and exclusive remedies.  We will not be liable to you for any consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity however arising even if we have been advised of such damages.

8.5 You acknowledge and agree that the burden of proof in respect of alleged defects in Products or Services (or their Delivery) rests with you.  

8.6 You must bear all costs of all recalls or withdrawals from sale of Products for any reason (including if we Deliver a defective Product and/or Service). You and we must cooperate in respect of the initiation and conduct of any recall with the objective being to optimise your and our reputation and goodwill whilst ensuring public health and safety is maintained at all times.

8.7 You undertake to promptly inform us if you believe that any Product is defective due to conduct for which we are responsible and in doing so must set out as much information as you have concerning the basis for your belief.  You must keep the relevant Products stored separately from all others and in the state or condition in which they were Delivered to you until we have an opportunity to inspect them.  You must provide all assistance that we reasonably request to determine whether your belief is correct and, if we accept that we are responsible for defective Products (including Services) then you must destroy the Products or deliver them up to (or as directed by) us on our request.  Clause 8.3 then applies in respect of the Products.

8.8 You agree that we are not liable for any defect in or damage to Products:

1. unless you advise us of such within the time periods provided in these Terms, including in your notice full details of the Products, the alleged defect and all documents associated with your order and Delivery; 
2. if you do not reasonably assist us in the investigation of your claim;
3. despite clause 8.8(a), if you settle or compromise a claim by a third party concerning such without our involvement and prior written consent; or
4. despite clause 8.8(a), arising or occurring whilst in transit with a third party (whether or not a common carrier) even if we arranged for that third party to transport the Products and Delivery has not occurred.

8.9 In no circumstance will we be liable to you or any other person for any loss or damage to person or property, or for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity arising out of us Delivering Products and/or Services or otherwise providing or suppling any goods or services in connection with these Terms on any account whatsoever, and whether by way of damages or indemnity or in respect of breach of contract, tort (including negligence) or defect in manufacture/processing, design or information.

9. INDEMNITY

9.1 You indemnify us and must keep us indemnified against all claims, suits, actions, demands, loss (including consequential, special, punitive, indirect or economic loss or damage or loss of profits or opportunity), liability, costs, expenses (including legal expenses on a full indemnity basis), judgments and awards made against us or incurred by us to the extent that such is caused (directly or indirectly) by a breach of these Terms, or your order, or any negligent act or omission or breach of any law applicable to the handling, storage, use or sale of the Products (including as incorporated into another good or service), by you or any of your officers or employees.   9.2 The indemnity in clause 8.1 is a continuing indemnity and is in addition to any statutory rights or remedies we may have or exercise against you.

10. LUSTY EQUIPMENT

10.1 Lusty may from time to time at its discretion provide You with Lusty Equipment.  

10.2 The Lusty Equipment will at all times remain Lusty’s property, and you will have no claim, right or interest in the Lusty Equipment. You will not do anything or deal with the Lusty Equipment in any way which is inconsistent or derogates from Lusty’s rights in Lusty Equipment.

10.3 Lusty may require You to enter into a separate agreement relating to the provision by Lusty of Lusty Equipment.

10.4 On providing you with 5 days notice that Lusty requires the Lusty Equipment to be returned to it, You must, at your expense, promptly provide to Lusty all assistance as Lusty may reasonably require enabling Lusty to take possession of all Lusty Equipment and any other property of Lusty which may be in your possession.

11. ONLINE RETAILING

11.1 You may only sell the Products online where you have received written approval from us and where we have provided that approval you must comply with the Lusty Online Reseller Policy applicable at the time consent is provided and the following minimum guidelines;

(a) Where consent is provided you must only take orders via publicly accessible ecommerce enabled web pages hosted on approved websites owned, controlled and operated by your company. For example, selling via 3rd party marketplaces (eBay, Amazon, Alibaba, Overstock.com, Facebook.com, Gumtree, Trademe etc.), drop-ship accounts (Buy.com, Newegg.com, Amazon.com, Costco.com, Overstock.com, etc.), classified sites (Craigslist.org, Facebook Marketplace, etc.) or direct messages on forums is strictly prohibited.

12. GENERAL

12.1 Nothing in these Terms gives you any right, title or interest in or to any of our assets or rights other than the Products and Services (excluding any intellectual property rights in or relating to them and their packaging and storage, together with any associated goodwill), and then only in accordance with these Terms.

12.2 . Any confidential information or intellectual property provided by us in connection with the products or Services, including these Terms remains at all times our confidential and proprietary information and shall be used solely to complete the relevant order and for no other purpose. Any confidential information provided must be returned to us at any time on request.

12.3 You acknowledge that we or the manufacturers we represent, own all rights and goodwill in the trade marks, brands and other intellectual property we or they use in relation to the Products and their packaging.

12.4 You must not:

1. repackage Products using our trade marks or packaging; or 
2. modify or in any way alter, deface or cover up all or any of our trade marks or any part of the appearance or get-up of the packaging of the Products; or
3. Use any other trade marks or trade names in connection with or association with our trade marks or packaging; without our prior written consent.

12.5 You must ensure that you and your officers, employees and advisers do not disclose any information provided by us to you unless:

1. the information is in the public domain (other than by reason of breach of any confidentiality obligation owed to us by anyone); or
2. the disclosure (including its form and context) is first approved by us in writing.
   12. 6           These Terms and your order, and any dispute which arises under, out of or in connection with these Terms or your order, their negotiation or their subject matter are governed by the law of New South Wales, Australia and you and us both irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.  You and we must seek to resolve any differences by direct negotiation for not less than 10 days before resorting to legal action.
   13. 7           Any personal information collected by you or us in connection with these Terms must only be used or disclosed for the purposes of ensuring performance of these Terms or your orders and any future like agreements or arrangements.

This may include disclosure within your or our organisations and to other parties involved in performing these Terms or future like agreements or arrangements. You and we agree to comply with relevant privacy laws in respect of any personal information collected in connection with these Terms, any orders and any future like agreements or arrangements.

12.  
    12. 8           Headings are inserted for ease of reference only and do not affect the interpretation of these Terms.
    13. 9           If part or all of any provision of these Terms or your order or its application to any person or circumstance is illegal or unenforceable, the provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable.  If any provision or part of it cannot be interpreted in that way, the provision or part of it will be severed from these Terms or your order and the remaining provisions continue in full force and effect.  
    14. 10         Any notice given by us under, or failure by us to insist on strict compliance with, any agreement between you and us (including an accepted order from you) or any delay by us in exercising our rights under any such agreement is not a variation or waiver of any provision of that agreement or of any right available to us.
    15. 11         A rule of construction does not apply to the disadvantage of us because we prepared these Terms.
    16. 12         You may not assign or novate any or all of your rights or obligations under these Terms to a third party or purport to do so without out our prior written consent (which may be given or withheld in our complete discretion).
    17. 13         All notices under these Terms must be in writing and delivered by you or us to the other at the address in Australia that the other specifies from time to time.
    18. 14         Any variation to, or amendment or replacement of, these Terms as they apply to you must be authorised in writing by us through a duly authorised signatory on our behalf. 12.15 If you are a company or trust, we can terminate these Terms immediately by notice in writing to you if we form the view that you have undergone a change of control or other change of circumstance whereby we conclude that we would be dealing with a different party or are subject to different commercial considerations if we were to continue dealing with you.  We can also terminate these Terms immediately by notice in writing to you if you sell or transfer all or a material part of your business, assets or undertaking (or agree to do so) without our prior written consent.

12.16 No delay or failure to exercise any of our rights or remedies will be a waiver of any of our rights or remedies.

13. Termination  

13.1 Without limitation to any right or power in Lusty in these Terms or any other agreement between you and us, Lusty may, at its sole discretion, terminate any agreement between you and us, including these Terms, any line of credit and any trading account, in the following circumstances:

1. If you commit any breach of these Terms;
2. If you do not have any trading activity with us for a period of three months;
3. If you default on any payment terms, including terms of any credit extended to you.