Standard Terms and Conditions of Sale

Unless the Supplier and the Customer otherwise agree in writing, these Terms are incorporated into and form part of any Contract between the Supplier and the Customer for the supply of Goods by the Supplier.

1. Definitions

In these Terms unless the contrary intention appears:

‘Australian Consumer Law’ means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth);
‘Business Day’ means any day that banks are generally open for business in Adelaide but not a Saturday, Sunday or a public holiday pursuant to the Holidays Act 1910 (SA);
‘Contract’ means the contract referred to in clause 3.1, being the contract formed between the Supplier and the Customer for the supply of Goods;
‘Customer’ means the party or parties entering into the Contract with the Supplier;
‘Goods’ means ‘Limbag’ waterproof bags (which are designed to keep wounds and plaster on arms and legs dry) or other goods or products to be supplied by the Supplier in accordance with the Contract;
‘PPSA’ means Personal Property Securities Act 2009 (Cth);
‘Supplier’ means 2P Enterprises Pty Limited ACN 612 587 283 of PO Box 1086, Flinders Park, South Australia; and
‘Terms’ means these standard terms and conditions of sale.

2. Interpretation

In these Terms unless the contrary intention appears:

the singular includes the plural and vice versa;
a reference to a person includes any corporation, partnership, joint venture, trust, association, government, or public authority and vice versa;
a reference to any party to this or any other document includes the party’s successors and permitted assigns;
a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment and any subordinate legislation issued under that legislation or provision;
mentioning anything after include, includes or including does not limit what else might be included; and
a reference to a person that comprises two or more persons means those persons jointly and severally.

3. Contract

The specifications, timing, price and other details of the Goods to be provided by the Supplier to the Customer will be agreed between the parties (‘the Contract’).
The Contract may be formed:

3.2.1 verbally (for example, in a meeting, by telephone or other electronic verbal communications); or

in writing (for example, by purchase order and acceptance, letter, facsimile, email, website order or by other electronic written communications).

If the Supplier provides a quotation (‘the Quotation’) in relation to the Goods to be provided:
- the Quotation is valid for 30 days unless withdrawn earlier by the Supplier or otherwise agreed between the parties; and
- the Quotation should not be construed as an offer or obligation to supply Goods and the Supplier reserves the right to accept or reject any request or order from the Customer to provide the Goods.
If the Customer makes a request or order (‘the Order’) for the Supplier to supply Goods:
- the Order should be construed as an offer and not as an acceptance of an offer previously made by the Supplier;
- the Order does not create any obligation on the Supplier to supply the Goods; and
- the Contract will not be formed until such time as the Supplier accepts the Order either verbally or in writing or by delivery of the Goods.
Once formed, the Contract and these Terms constitute the entire agreement between the Supplier and the Customer. All prior negotiations, agreements, arrangements, representations, understandings and correspondence are superseded by the Contract and these Terms.
The Contract and these Terms will in all circumstances prevail over the Customer’s terms and conditions (if any), unless the Supplier agrees in writing to be bound by the Customer’s terms and conditions.
To the extent that there is any inconsistency between the Contract and these Terms, these Terms prevail unless the inconsistency is agreed in writing.

4. Prices

The price for the supply of Goods will be agreed in the Contract.
The Supplier may increase the price of Goods if the price increase results from the introduction of any legislation, regulation or government policy.
Unless otherwise stated:
- the price for the Goods agreed in the Contract and any other amount payable under the Contract or these Terms shall be exclusive of any tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST’); and
- the Customer will be required to pay to the Supplier an amount equal to the GST in addition to the price or relevant amount.

5. Delivery

5.1 Delivery Terms

In addition to the price for the Goods agreed in the Contract, the Customer will, unless the Supplier and the Customer otherwise agree, pay for the cost of delivery of the Goods as follows:

if the Contract is formed through the Supplier’s website, the Customer will pay to the Supplier a fixed $5 delivery fee for delivery of the Products to anywhere in Australia; or
if the Contract is not formed through the Supplier’s website, the Customer will pay to the Supplier a fixed $10 delivery fee for delivery of the Products to anywhere in Australia.

5.2 Delivery Date

The Supplier will make all reasonable efforts to have Goods delivered to the Customer by the date agreed between the parties, but the Supplier will not be liable for:

any failure to deliver, or delay in delivery, of Goods for any reason;
any damage or loss due to unloading or packaging of Goods or
any damage to property caused upon entering premises to deliver the Goods.

5.3 Acceptance

The Customer will inspect all Goods upon delivery or collection.
If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer may reject or return those Goods in accordance with clause 6.
The Customer will be deemed to have accepted the Goods supplied in the following events:
- failure by the Customer to reject or return those Goods in accordance with clause 6; or
- use of the Goods in any way by the Customer.
Except as required by law, and subject to clause 6, the Supplier will be under no obligation to accept Goods returned for any reason.

6. Rejection of Goods

The Customer may reject any Goods only in accordance with this clause.
If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer must notify the Supplier:
- by providing full particulars of the claim in writing within seven days of the receipt of those Goods; or
- where the claim relates to non-delivery of Goods by providing full particulars of the claim in writing within seven days of the agreed date of delivery of the Goods.
All Goods returned or rejected are subject to assessment by the Supplier.
To the extent permitted by the Australian Consumer Law or any other law, the Supplier may at its sole discretion refuse to accept the return or rejection of the Goods or dispute or reject any claim made under this clause.
Unless the Supplier and the Customer otherwise agree in writing, the Customer will bear the costs of returning any Goods.
The Customer agrees to keep the Goods until the Supplier can arrange the inspection or collection of the Goods.
Subject to the Customer’s rights under the Australian Consumer Law, the following Goods cannot be returned or rejected by the Customer under any circumstances:
- those that were specially made, sourced, ordered or purchased for the Customer;
- those that were used, installed, damaged or altered in any way by the Customer;
- those that were sold to the Customer at wholesale or discounted prices, or as second grade or quality; or
- those that are no longer in stock in store by the Supplier or have been discontinued.

7. Payment

7.1 Payment terms

If the Contract is formed through the Supplier’s website, the Customer will pay for the Goods as soon as the order is placed.
If the Contract is not formed through the Supplier’s website the Customer will pay for the Goods as follows:
- within 30 days from the date of the invoice or account issued by the Supplier to the Customer; or
- by such other time as agreed in the Contract.
The Customer must pay for the Goods in cash, by electronic bank transfer, by cheque, by credit card or by any other method of payment specified by the Supplier.
Payment is only received by the Supplier when it receives cash or when the proceeds of other methods of payment are credited and cleared to the Supplier’s bank account.
The Customer may not assert or exercise any right of set-off against monies payable by it to the Supplier.

7.2 Interest

The Supplier may charge interest on amounts which remain unpaid after the due date for payment. Interest may be charged on the outstanding amounts until they are paid in full.
The interest rate will be seven percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time.
That interest will accrue and be recoverable from day to day.

8. Title and Risk

8.1 Retention of Title

The legal and equitable title to the Goods will only be transferred from the Supplier to the Customer when the Customer has met and paid all that is owed to the Supplier on any account whatsoever.
The Customer acknowledges that until the Customer has met and paid all that is owed to the Supplier on any account whatsoever, the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier.
The Customer will store the Goods safely and in such manner to ensure that they are capable of being clearly identified as the property of the Supplier.
If required, the Customer shall deliver the Goods which are subject to this clause 8.1 to the Supplier at the Customer’s cost.
If the Customer defaults as contemplated by clause 10.1, in addition to clause 10.2, the Supplier may, without notice, take possession of the Goods and the Customer agrees that representatives of the Supplier may enter the Customer’s premises for that purpose.
Despite clause 8.1.1, the Customer may sell as fiduciary agent for the Supplier the Goods to a third party, provided that where the Customer is paid by that third party, the Customer holds the proceeds separate from other monies, to the extent of the amount owing by the Customer to the Supplier.

8.2 Risk

The risk in the Goods passes to the Customer upon delivery or handover (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
The Customer acknowledges that insurance of any of the Customer’s goods is the responsibility of the Customer.

9. Personal Property Securities Act 2009 (Cth)

The Customer acknowledges and agrees that for the purposes of the PPSA:
- the Contract and the Terms constitute a ‘security agreement’;
- the Supplier holds a ‘security interest’ in respect of all Goods supplied and in any proceeds of the sale of the Goods; and
- any supply of Goods to which clause 7.1 applies will constitute a ‘purchase money security interest’.
The Customer will execute all documents, provide all such information and do such further acts as the Supplier may reasonably require to enable the registration a ‘security interest’ or a ‘purchase money security interest’ under the PPSA.

9.3 To the extent permitted by law and the PPSA, the Customer agrees to waive all of its right to receive any notice, statement or information under sections 95, 123, 130, 132(3) (d) and 135 of the PPSA, and all of its rights under sections 142 and 143 of the PPSA and waives any other rights under the PPSA which the Customer is permitted to waive at law.

10. Default

The Customer will be in default if:
- the Customer breaches any of the Terms or the Contract;
- payment for the Goods has not been received by the Supplier in accordance with clause 7;
- the Customer being an individual commits an act of bankruptcy; or
- the Customer being a body corporate becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth).
If the Customer defaults, the Supplier may:
- treat the whole of the Contract as repudiated and sue for breach of contract;
- refuse to supply any Goods to the Customer;
- refuse to continue to provide the Goods to the Customer;
- claim the return of any Goods in the Customer’s possession where title has not passed to the Customer; and
- without notice to the Customer make all monies owing by the Customer to the Supplier on any account immediately due and payable.
Notwithstanding any provision in this clause, the Supplier reserves all of its rights to claim any remedy available to it as a result of the Customer’s default.

11. No Advice

The Customer acknowledges that the Supplier is supplying the Product only and is not providing any medical or other advice.
The Customer must only use the Product in consultation with their medical practitioner, and must follow all reasonable directions and instructions from the medical practitioner in relation to the use of the Product.
The Customer must follow any instructions for use supplied with the Product, but only to the extent that they do not contradict the directions or instructions of the Customer’s medical practitioner.
If the Customer is selling the Product to third parties, the Customer must make the third parties aware of clauses 1 to 11.3 and obtain similar acknowledgements and agreements from those third parties.
The Customer indemnifies the Supplier against any third party claims made against the Supplier whether that claim is made in tort, under statute, in equity or otherwise.

12. Limitation of Liability

All terms, which would otherwise be implied by law or otherwise, are excluded.
If under the Australian Consumer Law or any other law, any terms which apply to the sale of Goods under the Contract and these Terms cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.
To the extent permitted by law, the Supplier’ liability for any breach of the terms of the Contract and these Terms, and any condition or warranty implied by the provisions of the Australian Consumer Law, is limited to and will be completely discharged by any one of the following as determined by the Supplier in its absolute discretion:
- the replacement of the Goods or the supply of equivalent Goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or acquiring equivalent Goods; or
- the payment of the cost of having the Goods repaired.
Except as expressly provided in this clause and to the extent permitted by law, the Supplier is not liable to the Customer (and any party claiming through the Customer) for:
- any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects;
- any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where such loss or damage includes:
  - any loss or damage arising from pain, suffering and loss of enjoyment of life;
  - any loss of income, profit or business; or
  - any loss of goodwill or reputation.
- Notwithstanding this clause 12, if the Supplier is liable to the Customer for loss or damage and the Customer suffered that loss or damage as a result of multiple causes, the Supplier is only liable to the extent that the Supplier of the Goods has directly caused the loss or damage. If one of the causes of the loss and damage is the Customer’s own negligence or breach of contract then the Supplier’s liability is reduced to the extent that the Customer has contributed to the loss or damage.

13. Indemnity

The Customer will indemnify and keep indemnified and hold the Supplier harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Supplier, and from and against all actions, proceedings, claims or demands made against the Supplier, arising from one or more of the following:

the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.

14. Force Majeure

If the Supplier’s ability to perform its obligations under the Contract is adversely affected by war, strike, trade dispute, damage to plant or machinery, shortage of any material or labour or any cause beyond the Supplier’ control, the Supplier may, if it chooses, end the Contract or suspend it for a period determined by the Supplier by giving the Customer written notice. The Supplier will not be liable for any loss, damage or liability which the Customer incurs.
The Customer must accept delivery of the Goods, Service Results and, or Services notwithstanding any delay in delivery caused by any of the events specified in clause 15.1.

15. Notice

A notice is deemed to have been given if it is in writing and executed by the sender or its agent and is:
- delivered or sent by pre-paid post to the address on the Contract (or any other address notified to all parties in writing);
- sent by facsimile transmission to the recipient’s last known facsimile number; or
- sent or delivered to the recipient in accordance with the Corporations Act 2001 (Cth) or any other legislation.
A notice given in accordance with this clause is deemed to have been received:
- if delivered or transmitted by facsimile:
  - on the day of transmission or delivery if the transmission or delivery occurred before 5.00 pm on a Business Day, and
  - otherwise, on the next Business Day; and
- if sent by pre-paid post, on the third Business Day after posting.
Where two or more persons comprise a party, notice to one is effective notice to all.

16. General

The Customer cannot assign, charge or otherwise deal with its rights and obligations under the Contract and these Terms without the prior written consent of the Supplier.
The Contract and these Terms are governed by the laws of South Australia and the Commonwealth of Australia. The parties submit to the jurisdiction of the Courts of South Australia and the Commonwealth of Australia. Any proceeding brought in the Federal Court of Australia must be instituted in its South Australia District Registry.
The Customer acknowledges that it has been given reasonable opportunity to obtain independent legal advice before entering into the Contract.
The rights and obligations of the parties will not merge on completion of any transaction under the Contract and these Terms or upon the execution of any other document in connection with the subject matter of the Contract and the Terms.
All rights under the Contract and these Terms are in addition to and do not abrogate, limit or reduce any other rights that the Supplier may have.
Any provision of the Contract and these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from the Contract and these Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
Unless otherwise specified, time is of the essence in the Contract.
The Supplier may vary the Terms with reasonable notice to the Customer.
A right or obligation under the Contract and these Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.
Each party must bear its own legal and other costs in relation to the negotiation, preparation and execution of the Contract and these Terms and any document required by the Contract and these Terms.
The Customer must pay all stamp duty, registration fees and any other fees charged by any government authority or body in respect of the Contract and these Terms and any document required by the Contract and these Terms.