Terms & Conditions

1. TERMS OF ENGAGEMENT

These terms and conditions (T&Cs) set out the contractual basis upon which Crea Laboratory Tecnologies Ltd (ABN 57 125 023 430) (Company, we, us, our etc) will provide goods and/or services to our clients/customers (Purchaser, you, your etc). Our T&Cs are to be read in conjunction with our quotation(s) and any other related documents. Any manufacturer or supplier of goods referred to will be hereinafter called “Principal”.

These T&Cs apply to all transactions between the Company and the Purchaser relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These T&Cs take precedence over terms of trade contained in any document of the Purchaser or elsewhere. The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.

2. DEFINITIONS

Claim/s means Consequential Loss means any direct, indirect, punitive, incidental, special, consequential loss or damages or any damages whatsoever including, without limitation, damages for loss of use, revenue, data or profits.

Event of Default means those events described in clause 24 of these T&Cs.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.

Force Majeure Events are events or circumstances beyond the Company’s (or the Principal’s) control including, but not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, labour disputes, pandemics, government-imposed bans, weather events and natural disasters, fire, war, acts of God, Government decrees, proclamations or public health orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

Loss includes, but is not limited to, costs (including party to party legal costs and the Company’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.

PPS Law means the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and any amendment made at any time to any other legislation as a consequence of a PPS Law.

3. YOUR DETAILS

Before providing any goods and/or services to you, we require you to complete, date and sign our Client Details Form, any relevant quotation(s) and these terms and conditions and return them to us. Whilst we require you to sign and return the documents to us, by continuing to instruct us to provide goods and/or services to you, you are deemed to have accepted our terms and conditions in full. We reserve the right, in our absolute discretion, to require acceptance of our terms and conditions by you signing them and to refuse to commence/continue provision of the goods and/or services prior to receipt of the signed terms and conditions.

4. LIABILITY

(a) To the full extent permitted by law, the Company assumes no liability for any Loss or damage suffered by you through the provision of (of failure to provide) the goods and/or services. The Purchaser expressly agrees that use of the Goods and Services is at the Purchaser’s risk.

(b) Under no circumstances is the Company or any of its suppliers liable or responsible in any way to the Purchaser or any other person for any Loss, Claims or Consequential Loss as a result, direct or indirect, of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

(i) any Goods or Services supplied to the Customer,

(ii) any delay in supply of the Goods or Services; or’

(iii) any failure to supply the Goods or Services.

(c) Any advice, recommendation, information, assistance or service given by the Company in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Company does not accept any liability or responsibility for any Loss suffered as a result of the Purchaser’s reliance on such advice, recommendation, information, assistance or service.

(d) The Purchaser acknowledges that the Goods or Services are not for personal, domestic or household purposes.

(e) The Australian Consumer Law may give to the Purchaser certain guarantees. Where liability for breach of any such guarantee can be limited, the Company’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

5. CONFIDENTIALITY

All information supplied to you by us as a part of the provision of the goods and/or services, including these T&C’s and any other documentation provided to you by us, is confidential. You must not release any of this information to any third party, unless required or permitted by law, without our written consent.

6. QUOTATIONS

Unless otherwise stated quotations are valid for 14 days from the date marked on the quote or if there is no date marked on the quote the date the quote is issued to you. All quotations are subject to withdrawal or variation by the Company at any time. If the Company amends or varies the quote, those amended details supersede any relevant prior detail in dealings between the parties. The Company reserves the right to correct any accidental error or omission on quotation or invoice without prior notice.

7. ORDERS

All orders must be in writing addressed to the Company, clearly identifying the goods or services ordered and any specifications. Any costs incurred by the Company in reliance on incorrect or inadequate information provided by the Purchaser in an Order may result in the imposition of an additional charge. No order given to the Company based upon a quotation shall be binding upon the Company until accepted by the Company in writing. The Company may in its absolute discretion refuse to provide goods or services where: (a) goods are unavailable for any reason whatsoever, and/or credit limits cannot be agreed upon or have been exceeded.

8. VARIATONS TO ORDERS

Any request to vary an order must be made in writing by the Purchaser. If the Purchaser wishes to vary its requirements after a Quote has been prepared by the Company or after the placement of an Order, the Company reserves the right to vary the Quote to include any additional charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Company in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both. The Company has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation, unless otherwise agreed in writing.

9. COSTS/PRICES

All prices are net unless otherwise stated. Prices for goods to be imported are based on prices quoted to the Company by Principals and the rates of freight, insurance premiums, customs duties, exchange rates and other costs of importation known to the Company at the time of quotation. In the event of any increase in these rates of in the price of the goods quoted to the Company by Principals before acceptance of an order or prior to delivery of the goods to the Purchaser, then the cost to the Company incurred by such increase/s shall be added to and form part of the purchase price and be payable by the Purchaser.

10. CANCELLATION OF ORDERS

If any order is cancelled prior to delivery of the goods the Purchaser shall be liable to the Company for costs the Company incurred in attempting to meet that order prior to cancellation such as freight, restocking fees and supplier payments. The Purchaser must pay any cancellation fee as reasonably charged by the Company. For any valid reason, the Company may at its option replace the goods with an identical or substantially similar product or offer a credit note less any restocking fees to be used against future purchases from the Company.

11. RETURN OF GOODS

Returns may only be made with prior written consent of the Company and will not be accepted after 7 days of delivery of the goods to the Purchaser. Freight costs on returns will be borne by the Purchaser. A restocking fee of 25% will apply to all returns. Where goods were originally supplied in a special Principal’s carton, any return of that good is subject to the good being returned is in that original undamaged carton and the goods shall be in their original and unmarked condition, compete with any instruction sheets supplied. The following goods cannot be returned for credit under any circumstances:

(a) Any custom made goods including items cut to length.

(b) Any goods altered or damaged by the Purchaser.

(d) Any goods especially ordered which are not normal stock lines of the Company.

For any valid reason, the Company may at its’ option replace the goods with an identical or substantially similar product or offer a credit note less any restocking fees to be used against future purchases from the Company.

12. AVAILABILITY OF GOODS

The Company shall have no liability, direct or indirect, for delay in delivery. The delivery time for goods quoted is an estimate only and is based upon theCompany’s knowledge of conditions prevailing at the time the quotation is made. The delivery time is subject to variation in accordance with the Principal’s manufacturing program and the availability of shipping space from the source of supply. The Company will not have any liability for any other delays caused by Force Majeure Events. The Company does not accept orders under penalty for late delivery.

13. ACCEPTANCE OF GOODS

The Purchaser shall inspect the goods immediately on the arrival thereof and shall within 7 days from such inspection give notice in writing to the Company of any matter or thing by reason whereof they may allege that the goods are not in accordance with the contract. If the Purchaser shall fail to give such notice to the Company, the goods shall be deemed to be in all respects in accordance with the contract and the Purchaser shall be bound to accept and pay for the same accordingly.

14. DELIVERIES

In the case of delivery or part thereof, each and every delivery will be deemed to be sold under a separate contract and will be subject to these Terms and Conditions.

15. LIENS

In additions to any lien to which the Company may be entitled by statute or common law, the Company shall, in the event of the Purchaser’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Purchaser but in the Company’s possession at the time, to cover the unpaid price of any goods (including the goods themselves) sold by the Company to the Purchaser.

16. WAIVERS

Failure by the Company to insist upon strict performance by the Purchaser of any terms or conditions contained herein shall not be taken to be a waiver or of any rights of the Company in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion.

17. RISK AND DISPATCH

Unless otherwise specified by the Company, the point of delivery of the goods shall be at the Company’s premises. Goods delivered elsewhere shall be at the Purchaser’s sole risk from dispatch to such premises and the Purchaser will indemnify the Company against any claim, liability, damage or injury to or by the goods after dispatch and shall specify in writing on their Order if insurance is not to be taken out on their behalf and at their cost.

18. LITERATURE

Illustrative and descriptive literature supplied by the Company to the Purchaser represents generally the goods specified therein but may not comply in all inspect with the goods which are the subject the quotation or order.

19. INSTALLATION AND COMMISSIONING

All equipment shall be installed and commissioned by and at the expense of the Purchaser unless agreed to in writing or otherwise stated in the Company’s quotation. In the case of equipment which the Company or the Principal undertakes to install, it is the Purchaser’s responsibility to provide any service utilities required, (including but not limited to consumables such as gases, balances and the like, suitable electric power outlet, water outlets, drains, compressed airlines, etc). If special handling equipment is required such as heavy lift gear for movement of equipment at the installation site, the cost of hiring or using such equipment and any associated charges will be borne by the Purchaser and will be charged as an additional charge to the Purchaser’s account. Installation will be made at the time of delivery or as soon as practicable thereafter and the condition and state of the equipment will be at the Purchaser’s risk. Unless otherwise mutually agreed, the Company’s responsibility to install such equipment may cease if the installation is deferred by the Purchaser for an indefinite period

20. PRODUCT WARRANTY

Other than as required by law, the Company gives no warranty as to any goods supplied. Should any goods sold by the Company fail for any inherent electrical or mechanical defect within the Principal’s warranty period, the Company undertakes to repair the same free of charge providing the defective goods are returned to the Company’s warehouse freight/insurance prepaid and provided that no alteration or additions are made or repairs undertaken except by the Company or the Company’s authorized representatives. It is at the Company’s complete discretion as to where any warranty repair is to be conducted. If the Company determines that it is not practical to return the goods to the Company’s premises to be repaired under the Principal’s warranty and the Company has to attend the Purchaser’s or a third party’s premises to undertake a repair under the Principal’s warranty, the Purchaser is liable to the Company for the Company’s costs including travel and accommodation. The method of repair or replacement of any faulty good under the Principal’s warranty is at the complete discretion of the Company.

21. INJURY AND DAMAGE

Except to the extent the Company’s negligence has contributed to any Claim, the Purchaser shall indemnify the Company against all Claims in respect to any Loss or damage to any property whatsoever, or injury to any person whatsoever arising out of any default or negligence on the part of the Purchaser or the Purchaser’s personnel in connection with or during the Company carrying out of any work for or on behalf of the Purchaser on the Purchaser’s or any other person’s property.

22. ACCOUNTS

Payment: If the Company has agreed to offer credit to the Purchaser payment terms are strictly 14 days from the date of invoice. Where credit has not been agreed to, payment must be made in full at the time the order is placed. The order will not be filled until payment has been made.Payment must be by Electronic Funds Transfer, Cheque or Credit Card (Mastercard & Visa only). Please note an additional 3% of invoice value will be charged for payments made by credit card. Cheques and money orders must be made payable to “Crea Laboratory Technologies Pty Ltd”. The Purchaser is not entitled to retain any money owing to the Company notwithstanding any default or alleged default by the Purchaser of these T&Cs (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Purchaser’s rights for any alleged failure of a guarantee under the Australian Consumer Law.

Issue of Accounts: We will issue an account in the form of a Tax Invoice after the goods and/or services have been provided to you.We will send our invoices to the person who completes and signs our Client Details Form, unless otherwise instructed by you.You must notify us of any complaint in relation to your account in writing within 7 days of the invoice date otherwise payment of the account in full is required.

Unpaid Accounts: If any of your accounts are unpaid, we may elect not to provide any further goods and/or services to you until all unpaid accounts are paid in full. We may also elect to charge interest on any amount outstanding at the rate of 10% per annum, calculated daily. The Company may in its complete discretion apply any payment received from the Purchaser to any amount owing by the Purchaser to the Company.

Third Parties: You must pay our accounts whether or not, you have a right of indemnity or recovery from a third party, any third party seeks an assessment of any of our accounts and/or we have come to an arrangement with a third party.

Goods and Services Tax: Prices quoted by us are subject to the addition of Goods and Services Tax (GST). GST must be paid at the same time as payment of our fees and nonpayment is subject to the same treatment as unpaid accounts.

Other Tax & Duties: Prices quoted by us are subject to any tax imposed by any government authority upon the goods quoted including import or export duties and taxes or upon the production, sale, distribution, and delivery or upon any feature thereof if applicable. All such taxes shall be payable by the Purchaser and may be added to the purchase price by the Company.

23. TITLE AND RISK

(a) Risk in Goods passes to the Purchaser immediately upon delivery.

(b) Property and title in Goods supplied to the Purchaser under these T&Cs does not pass to the Purchaser until all money (including money owing in respect of other transactions between the Purchaser and the Company) due and payable to the Company by the Purchaser have been fully paid.

(i) is a bailee of the Goods until property in them passes to the Purchaser;

(ii) irrevocably appoints the Company to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Company with respect to the Goods under applicable law;

(iii) must be able upon demand by the Company to separate and identify as belonging to the Company Goods supplied by the Company from other goods which are held by the Purchaser;

(iv) must not allow any person to have or acquire any security interest in the Goods;

(v) agrees that the Company may repossess the Goods if payment is not made within 14 days (or such longer time as the Company may, in its complete discretion, approve in writing) of the supply of the Goods; and(vi) the Purchaser grants an irrevocable licence to the Company or its agent to enter the Purchaser’s premises in order to recover possession of Goods pursuant to this paragraph. The Purchaser indemnifies the Company for any damage to property or personal injury which occurs as a result of the Company entering the Purchaser’s premises.

(d) Where Goods are supplied by the Company to the Purchaser without payment in full of all moneys payable in respect of the Goods and any Services provided by the Company in respect of those Goods, and:

(i) the Purchaser makes a new object from the Goods, whether finished or not;

(ii) the Purchaser mixes the Goods with other goods; or

(iii) the Goods become part of other goods (New Goods),the Company agrees with the Purchaser that the ownership of the New Goods immediately passes to the Company. The Purchaser will hold the New Goods on trust for the Company until payment of all sums owing to the Company whether under these T&Cs or any other contract have been made. The Company may require the Purchaser to store the New Goods in a manner that clearly shows the ownership of the Company.

(e) For the avoidance of doubt, under paragraph 23(d), the ownership of the New Goods passes to the Company at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.

(f) Despite paragraph 23(c), the Purchaser may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:

(i) where the Purchaser is paid by a third party in respect of Goods including New Goods, the Purchaser holds the whole of the proceeds of sale, less any GST, on trust for the Company in a separate account, until all amounts owned by the Purchaser to the Company have been paid; or

(ii) where the Purchaser is not paid by a third party, the Purchaser agrees to assign all of its rights against the third party to the Company upon the Company giving the Purchaser notice in writing to that effect and for the purpose of giving effect to that assignment the Purchaser irrevocably appoints the Company as its attorney.

(g) Where Goods are supplied by the Company to the Purchaser without payment in full of all moneys payable in respect of the Goods and any Services provided by the Company in respect of those Goods, the Purchaser acknowledges that the Company has a right to register and perfect a personal property security interest.

(h) If:

(i) PPS Law applies or commences to apply to these T&Cs or any transaction contemplated by them, or the Company determines (based on legal advice) that this is the case; and

(ii) in the Company’s opinion, the PPS Law:

(A) does or will adversely affect the Company’s security position or obligations;

(B) enables or would enable the Company’s security position to be improved without adversely affecting the Purchaser,the Company may give notice to the Purchaser requiring the Purchaser to do anything (including amending these T&Cs or execute any new Terms and Conditions) that in the Company’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 23(h)(ii)(A) or improve the security position as contemplated in paragraph 23(h)(ii)(B). The Purchaser must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the Company’s opinion the Company’s security position or obligations under or in connection with these T&Cs have been or will be materially adversely affected, the Company may by further notice to the Purchaser cancel these terms of trade. If this occurs, the Purchaser must pay to the Company any money owed to the Company by the Purchaser immediately.

24. PURCHASER DEFAULT

(a) Each of the following occurrences constitutes an event of default:

(i) the Purchaser breaches or is alleged to have breached these T&Cs for any reason (including, but not limited to, defaulting on any payment due under these T&Cs) and fails to remedy that breach within 14 days of being given notice by the Company to do so;

(ii) the Purchaser, being a natural person, commits an act of bankruptcy;

(iii) the Purchaser, being a corporation, is subject to:

(A) petition being presented, an order being made or a meeting being called to consider a resolution for the Purchaser to be wound up, deregistered or dissolved;

(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Purchaser’s property and undertaking;

(D) any assignment for the benefit of creditors;

(iv) the Purchaser purports to assign its rights under these T&Cs without the Company’s prior written consent; or(v) the Purchaser ceases or threatens to cease conduct of its business in the normal manner (Event of Default, collectively).

(b) Where an Event of Default occurs, except where payment in full has been received by the Company, the Company may:

(i) terminate these T&Cs;(ii) terminate any or all Orders and credit arrangements (if any) with the Purchaser;(iii) refuse to deliver Goods or provide further Services;(iv) pursuant to clause 23(c), without demand, repossess and without notice re-sell any Goods delivered to the Purchaser on terms as it sees fit, the payment for which has not been received (and may deduct all expenses incurred); or(v) retain (where applicable) all money paid by the Purchaser on account of Goods or Services or otherwise.

(c) In addition to any action permitted to be taken by the Company under paragraph 24(b), on the occurrence of an Event of Default all invoices will become immediately due and payable.(d) For the purposes of recovering possession under 24(b)(iv) and without limiting the generality of the foregoing, the Purchaser irrevocably authorises and licenses the Company and its servants and agents to enter any premises where any Goods may be stored and to take possession of the Goods.

25. INTELLECTUAL PROPERTY

(a) Unless specifically agreed in writing between the Company and the Purchaser, all Intellectual Property Rights in any works created by the Company on behalf of the Purchaser vest in and remain the property of the Company.(b) The Purchaser warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise the Company to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Purchaser to the Company for the purposes of the Order.(c) Further, the Purchaser indemnifies and agrees to keep indemnified the Company against all Losses and Claims incurred by the Company in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Purchaser.

26. COMPLAINTS

If you have any complaints about any aspect of the services provided to you by us, you must notify our Head Office in writing of the specifics of your complaint within 7 days of the goods and/or services being provided to you and we will endeavour to resolve the dispute as soon as possible and in any event within 21 Days (or other period as agreed). We will notify you in writing of any dispute with the Purchaser within the same time period. Otherwise, if a dispute arises between the Company and the Purchaser, the following general procedure applies:

(a) The parties agree to use all reasonable attempts to resolve the dispute reasonably and commercially.

(b) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.

(c) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

(d) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. This paragraph survives termination of these T&Cs.

(e) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.

27. YOUR RESPONSIBILITIES

You must provide full and accurate information to us including but not limited to the Client Details and your requirements as to the specific uses of the goods being order and any particular requirements or specifications you may have. Where we are to provide services to you, you must provide us with reasonable access to your premises and ensure a safe working environment in accordance with all relevant Occupational Health & Safety laws.

28. ENTIRE AGREEMENT AND VARIATIONS

These T&Cs, any relevant quotations and any other of our documents completed by Us or provided to you constitute the entire agreement between us and you. Any variation of the T&Cs or the documents will only be effective if they are in writing signed by both parties.

29. CLIENT AUTHORITY

Any person who purports to enter into the agreement constituted by the T&Cs any relevant quotations and other of our documents on your behalf hereby warrants that for all purposes of the agreement he or she is your duly authorised agent and if such person is not your duly authorised agent then in consideration of us entering into the agreement he or she shall be deemed to be “The Purchaser” and be bound by all the terms, covenants and conditions of the agreement.

30. ASSIGNMENT

The Purchaser agrees that the Company may at any time appoint or engage an agent or contractor to perform an obligation of the Company arising out of or pursuant to these T&Cs. The Company has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these T&Cs provided that the assignee agrees to assume any duties and obligations of the Company owed to the Purchaser under these T&Cs. The Purchaser is not to assign, or purport to assign, any of its obligations or rights under these T&Cs without the prior written consent of the Company.

31. LAW AND JURISDICTION

The Agreement is subject to the laws of New South Wales, Australia and the parties submit to the jurisdiction of the Courts of New South Wales, Australia.

32. SEVERANCE

If for any reason any provision of these T&Cs would render the agreement ineffective, void, voidable, illegal or unenforceable, that provision or the relevant part thereof shall, without in any way affecting the validity of the remainder of the agreement, be severable and the agreement shall be read and construed and take effect for all purposes as if that provision or part were not contained herein.

33. TERMINATION

The events which trigger the right to terminate this agreement are listed at clause 24 of these T&Cs (Events of Default). Upon termination of this agreement, you must pay us immediately for all goods and/or services provided.

34. FORCE MAJEURE

If a Force Majeure Event prevents or hinders the Company’s provision of the Goods or Services, the Company is free from any obligation to provide the Goods or Services while those circumstances continue and is not liable for any associated delays or failure to provide Goods or Services in breach of these T&Cs. The Company may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

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