Terms and Conditions
HOT APPLE INDUSTRIES PTY LTD T/A HOT APPLE DISTRIBUTION A.B.N 48 066 718 072
- This Agreement is made between Hot Apple Distribution ABN 48 066 718 072 and the applicant ("the Customer"). This document records the terms and conditions on which Hot Apple Distribution agrees to supply and deliver Goods to the Customer and the terms around provision of Credit and the Guarantor agrees to guarantee and indemnify Hot Apple Distribution in respect of the Customer's obligations relating thereto.
- Unless otherwise provided by the parties in writing, the terms of this Agreement represent the entire agreement between the parties and will apply to each order for supply of Goods which the Customer places with Hot Apple Distribution. Hot Apple Distribution may at any time vary these terms and conditions or, without being obliged to give reason, withdraw or vary the terms of its provision of credit to Customer, by written notice to the Customer and any such variation will apply from the date of notification.
- Where the Customer is a company, Hot Apple Distribution will only supply Goods to the Customer subject to it obtaining guarantees from the Guarantors. The Guarantors will sign this Agreement as a Deed.
1.1. In this Agreement, the following definitions apply unless the context makes it clear that a definition is not intended to apply:
“Acceptance” or “Accepted” means the Services satisfies the requirements of this Agreement;
“Agreement” means the terms and conditions of this agreement and includes any attached schedules;
“Business Day” means between 9:00am and 5:00pm on a weekday other than a Saturday, Sunday or public holiday at Hot Apple Distribution’s principal place of business, unless specified otherwise in this Agreement;
“Carrier” means the freight carrier nominated by Hot Apple Distribution or by the Customer to carry the Goods between Hot Apple Distribution and the Customer.
“Credit Application” means the application for credit made by the Customer in writing to Hot Apple Distribution in Hot Apple Distribution’s required form and in accordance with clause 6.
“Customer” means the person described as such in the Schedule as well as anyone else who orders goods from Hot Apple Distribution on behalf of the Customer whether or not credit is being extended.
“Commencement Date” has the meaning specified in clause 2.1;
“Confidential Information” means all information obtained by a Party in the course of performing this Agreement whether or not commercial in nature;
“Contract Details” means those details specified in the Schedule of this Agreement;
“Contract Price” means the amount payable by the Customer to Hot Apple Distribution for the Goods under this Agreement in accordance with clause 4 and unless otherwise specified, is GST exclusive;
“Due Date” means thirty days from invoice date, unless otherwise agreed in writing, in which Hot Apple Distribution issues the invoice for the Goods to the Customer.
“Early Payment Discount” means any discount for early payment as may be agreed by the Customer and Hot Apple Distribution in writing.
“Expiry Date” has the meaning specified in clause 2.1;
“Force Majeure” means an event or circumstance beyond the reasonable control of a Party, which results in that Party being unable to perform an obligation on time, and is limited to natural events like fire, flood or earthquake, national emergency, terrorist act, or war;
“Goods” means any goods which the Customer has requested Hot Apple Distribution to supply at any time by placing an order with Hot Apple Distribution and which Hot Apple Distribution then agrees to supply to the Customer.
“Guarantee and Indemnity” means the guarantee and indemnity given by the Customer in clause 10.
“Guarantor” means the person described as such in the New Customer Form and where not detailed on the New Customer Form:
(a) any director or shareholder of the Customer;
(b) any partner of the Customer; and
(c) any trustee of the Customer.
“GST” means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
“GST Law” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
“Hot Apple Distribution” means Hot Apple Industries Pty Ltd trading as Hot Apple Distribution ABN 48 066 718 072, and where the context so requires, includes its employees, agents, and/or subcontractors;
“Insolvency Event” means any of the following:
(a) a Party becomes unable to pay its debts as and when they fall due;
(b) an application for winding up is made regarding the Party and not stayed within 10 Business Days;
(c) a winding up order is made against the Party;
(d) controller, administrator, receiver and manager, provisional liquidator or liquidator is appointed to the Party;
(e) a mortgagee enters into the possession of any property of the Party;
(f) notice is given of a meeting of creditors of the Party for the purposes of a deed of arrangement; or
(g) any actions of a similar effect are taken;
“Intellectual Property Rights” means all present and future rights in relation to copyright, trademarks, designs, patents, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement, and whether in Australia or otherwise;
“Misconduct” includes, but is not limited to:
(a) material non-compliance with statutory requirements, including relevant occupational health and safety laws;
(b) material non-compliance with anti-discrimination and harassment laws;
(c) material non-compliance with all rules, procedures and policies adopted by the Customer and brought to the attention of Hot Apple Distribution by the Customer; or
(d) unauthorised representation which may damage the reputation or business of the Customer;
“Moral Rights” means the moral rights granted under the Copyright Act 1968 (Cth) and any similar rights existing under foreign laws.
“Occurrence” means either a single occurrence, or a series of occurrences if these are linked or occur in connection with one another from one root cause, as the case may be;
“Outstanding Debt” means all money which the Customer owes to Hot Apple Distribution under any agreement which is due and payable.
“Parties” means the Customer and Hot Apple Distribution;
“Personal Information” means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
“Price” means the invoice price of the Goods supplied to the Customer which is the sum of:
(a) the price stated in Hot Apple Distribution’s current Pricelist for those particular Goods on the date of dispatch to the Customer;
(b) less any trade discount;
(c) plus any GST payable on the Goods;
(d) plus any freight costs under 8.1.
“Term” means the period(s) of this Agreement and any extension of time of the Term as otherwise agreed in writing by the Parties;
“Third Parties” means those parties recommend by Hot Apple Distribution and noted in the Schedule, and/or selected by the Customer from time to time.
“Quote” means any quote for Goods provided by Hot Apple Distribution in accordance with clause 4.
“Repossessed Goods” means any Goods in which title has not passed to the Customer under clause 20.
1.2. Headings are for convenience only, and do not affect interpretation. The following rules will apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.
1.3. A reference to:
(a) legislation (including subordinate legislation) is a reference to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(b) a clause is a reference to all of its sub-clauses;
(c) monetary references are references to Australian currency;
(d) a document or agreement, or a provision of a document or agreement, is a reference to that document, agreement or provision as amended, supplemented, replaced or novated;
(e) a person includes bodies corporate, unincorporated associations and partnerships; and
(f) anything (including a right, obligation or concept) includes each part of it.
1.4. If this Agreement expressly or impliedly binds more than one person then it will bind such persons jointly and severally.
1.5. A singular word includes the plural, and vice versa.
1.6. A word which suggests one gender includes the other gender.
1.7. If a word is defined, another part of speech of that word has a corresponding meaning.
TERM OF AGREEMENT
2.1. The Commencement Date for the Services to commence being provided is the date specified on the front page of this Agreement, or if no Commencement Date is specified, then the date the latter of the Parties executes this Agreement.
2.2. The Expiry Date is the date (if any) agreed between the parties, after which time the Customer no longer requires Hot Apple Distribution to provide the Services.
2.3. Unless specified otherwise in this Agreement, the Term will start on the Commencement Date and finish on the Expiry Date or the date on which this Agreement is terminated earlier in accordance with the terms of clause 14.
2.4. This agreement will continue on a month-to-month basis where the initial Term has expired or where no such Expiry Date has been provided in this Agreement.
3.1. The provisions of this Agreement will not be varied either in law or in equity except by agreement in writing between the Parties.
4.1. Hot Apple Distribution has the right, but not obligation, to provide Customers with a Quote for the Goods and any associated costs.
4.2. Each Quote given by Hot Apple Distribution is valid for the time stated in the Quote (or failing that, 30 days).
4.3. A Quote is not binding on Hot Apple Distribution until the Customer has placed an order and the order has been accepted by Hot Apple Distribution. Hot Apple Distribution gives no warranties, express or implied, as to the availability of the Goods referred to in a quote.
4.4. To request the supply of Goods, the Customer must submit an order in a form approved by Hot Apple Distribution from time to time.
4.5. These terms and conditions apply to all Goods Hot Apple Distribution supplies to the Customer (unless Hot Apple Distribution and the Customer expressly agree otherwise in writing in any particular circumstance) and shall operate to the complete exclusion of any Customer terms or conditions (whether accompanying any order or otherwise).
4.6. Upon submitting an order the Customer is bound to receive and pay for the Goods referred to in the order. The Customer may only cancel or vary an order if it is approved by Hot Apple Distribution in writing and the Customer pays all of Hot Apple Distribution costs and expenses arising out of the cancellation or variation.
4.7. Goods not available at the time of order will be placed on back order and will be dispatched to the Customer as soon as they are available. If the Customer does not want Goods to be placed on back order it must notify Hot Apple Distribution in writing.
- PRICE AND PAYMENT
5.1. Where Hot Apple Distribution provides a Quote and based on that quote the Customer places an order that is accepted by Hot Apple Distribution, the price of the Goods will be as stated in the quote.
5.2. Where Hot Apple Distribution does not provide a Quote to the Customer, the price of the Goods will be as set out in Hot Apple Distribution's standard price list (which is subject to change at Hot Apple Distribution's sole discretion) at the time the Goods are dispatched.
5.3. The price of the Goods is inclusive of GST unless otherwise stated.
5.4. The Customer must pay Hot Apple Distribution the total amount set out in each invoice issued to the Customer within the trading terms approved by Hot Apple Distribution from time to time (or failing that, within 30 days from the date of the invoice).
5.5. The Customer must pay all amounts due to Hot Apple Distribution:
(a) without set-off, deductions counter-claims or conditions; and
(b) in immediately available cleared funds to the bank account nominated by Hot Apple Distribution; or
(c) by cheque payment, although cheques need to be received 5 days before the account is due, allowing time for funds to transfer.
5.6. If an amount due under these terms and conditions is paid after the due date:
(a) Hot Apple Distribution may withhold the supply of Goods to the Customer; and
(b) a written statement signed by Hot Apple Distribution directors or credit officer stating the amount of money which the Customer owes to Hot Apple Distribution will be prima facie evidence of the Customer's debt to Hot Apple Distribution at the date of the statement.
5.7. The Customer must pay Hot Apple Distribution, in addition to the overdue amount and without demand, interest (calculated from the Due Date to the date of actual payment at the current rate as indicated by NSW general interest charge at the Due Date) on;
(a) any part of the Price not paid within 30 days of the Due Date;
(b) any judgment which Hot Apple Distribution may obtain against the Customer;
(c) all reasonable costs and expenses incurred by Hot Apple Distribution in collecting the overdue amount, including repossessing (or attempting to repossess) any Repossessed Goods.
5.8. An Early Payment Discount is only applicable if agreed in writing by Hot Apple Distribution and will only be applied once full invoice payment is received before the due date.
5.9. The Customer must not give Hot Apple Distribution any cheque or instrument in payment of money due under this Agreement which is dishonoured on presentation. If a cheque is dishonoured, the Customer must pay Hot Apple Distribution the dishonoured cheque and bank charges it incurs within seven days.
5.10. The Customer (remitter) is responsible for any bank charges, including overseas and local bank charges charged to Hot Apple Distribution (beneficiary), for any payment made via wire transfer. Hot Apple Distribution must receive payment for the full invoiced amount.
5.11. The Customer's obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Goods.
5.12. The Customer acknowledges that all prices specified in Hot Apple Distribution Pricelist are subject to change without notice.
5.13. Sign any PPSR form or notice and do all things necessary to allow for lodgement of such notice or form as necessary to protect Hot Apple Distribution’s interests created by this Agreement under the Personal Property Securities Act.
6.1. Hot Apple Distribution, including any agent or asociated entity, has the right but not obligation, to offer Credit Terms to the Customer on the following basis:
(a) the Customer, it’s shareholder, directors, partners and/or trustees as the case may be (the Guaranteeing Parties), will each provide a Guarantee and Indemnity in accordance with clause 10;
(b) the Guarantee and Indemnity will be legally binding on the Guarantors regardless of whether they have executed the New Customer Form or such other document as requested by Hot Apple Distribution or an agent or associate of Hot Apple Distribution;
(c) the Guarantor will remain liable for the Outstanding Debt regardless of whether the amount is recoverable from the Customer until the full Outstanding Debt has been reocvered along with any direct or indirect costs associated with recovery and lost value in Repossessed Goods.
(d) Hot Apple Distribution, its agents and associates are not required to pursue the Customer prior to pursing the Guarantor for any Outstanding Debt.
(e) The Guarantors agree that Hot Apple Distribution has a personal property security interest in recovering the Outstanding Debt and also in the Goods until such time as all amounts owing have been paid. The Guarantors irrevocably agree that they will jointly and severally ensure all documentation is executed and fees paid for and on behalf of the Customer and in their capacity as Guarantor, to secure an interest against the Customer on the Personal Property Securities Register for Goods ordered until title passes, and for any Outstanding Debt incurred.
DELIVERY AND ACCEPTANCE
7.1. Delivery times given by Hot Apple Distribution are estimates only and are not binding on Hot Apple Distribution.
7.2. Hot Apple Distribution may make part delivery of Goods ordered by the Customer, in the event where some goods cannot be supplied, in which case the Customer will only be liable to pay for the Goods supplied.
7.3. Delivery will take place at the time the Customer takes possession of the Goods.
7.4. The Customer must inspect the Goods on delivery.
7.5. If the number of Goods does not accord with the order or the Goods are damaged, the Customer must notify Hot Apple Distribution in writing within 2 days of delivery.
7.6. The Customer will have taken to have accepted Goods, and will not be entitled to make any claim for short deliveries or damage, if the Customer does notify Hot Apple Distribution within that time frame.
7.7. Once an order has been accepted by Hot Apple Distribution, the Customer is bound to accept delivery.
7.8. Hot Apple Distribution may agree to postpone delivery, provided that the Customer pay all of Hot Apple Distribution's reasonable costs (including storage fees) associated with that delay.
8.1. Each Party must not, and must ensure that its officers, employees, agents and sub-contractors do not, use or disclose any Confidential Information without the other Party’s consent, other than for the purposes of performing this Agreement.
8.2. Each Party may disclose Confidential Information to its officers, employees, agents and sub-contractors to the extent necessary for the performance of this Agreement, provided that the disclosing Party makes such persons aware that the information is confidential and must be kept confidential.
8.3. The obligations under this clause 8.1 do not apply to the extent that:
(a) any information is publicly available (other than as a result of a Party’s breach of this Agreement);
(b) any information is lawfully provided to a Party by a third party;
(c) a Party is required by law to disclose the information (and prior notice of the disclosure is given to the other Party); or
(d) a Party is required by this Agreement to disclose the information to a third party.
8.4. During the Term, each Party must keep all Confidential Information in a secure location so that no unauthorised person is able to gain access to it.
8.5. The Party must, upon the earlier of the:
(a) receipt of a written request by the other Party; and/or
(b) termination of this Agreement, promptly return any Confidential Information supplied by the other Party. The Party may keep one copy of such Confidential Information for its audit and record keeping purposes.
9.1. Hot Apple Distribution:
(a) must comply with the Privacy Act 1988 (Cth) (“Privacy Act”) in relation to Personal Information, as if Hot Apple Distribution were an organisation bound by the Privacy Act, even it is not; and
(b) if it is classed as a small business operator under the Privacy Act, agrees to choose to be treated as an organisation bound by the Privacy Act in accordance with Section 6EA of the Privacy Act during the Term.
9.2. If Hot Apple Distribution collects or has access to Personal Information in order to provide the Services, Hot Apple Distribution must:
(a) ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
(b) not use Personal Information other than for the purposes of performance of the Services, unless required or authorised by law;
(c) not disclose Personal Information without the consent of the Customer, unless required or authorised by law;
(d) ensure that only authorised personnel have access to Personal Information;
(e) immediately notify the Customer if Hot Apple Distribution becomes aware that a disclosure of Personal Information is or may be required or authorised by law;
(f) make its officers, employees and subcontractors aware of Hot Apple Distribution’s obligations under this clause 9;
(g) comply with any request or direction of the Customer arising from or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Act, and any guideline or regime on privacy as provided by the Customer; and
(h) comply with such other privacy and security measures as the Customer reasonably advises Hot Apple Distribution in writing from time to time.
9.3. Hot Apple Distribution must immediately notify the Customer upon becoming aware of any breach of this clause 9.
9.4. The Customer agrees that Hot Apple Distribution may:
(a) Make any enquiries of and, to the extent permitted by law make disclosures of information to, the Customer’s bankers, other credit providers or any credit reporting agency which it considers necessary to assess the Customer’s credit worthiness or collect overdue payments; and
(b) Collect a credit report containing personal information about the Customer to assess whether or not to give the Customer credit; and
(c) Lodge any personal property securities register charges to register their interest in any Goods which have been purchased on Credit Terms until such time as the goods have been fully paid for and risk has passed, whichever is the later.
9.5. The Customer acknowledges that many online software packages and Hot Apple Distributions including, but not limited to, Google and Xero, store data in facilities which may not be wholly or in part based on Australian shores, and therefore may not fall under the jurisdiction of the Australian Privacy Principles. Hot Apple Distribution and Third Parties will take all reasonable steps to provide for the security of such stored data to the extent possible and act in accordance with the terms as provided by those Hot Apple Distributions and software packages. The Customer may refuse to work with offshore Hot Apple Distributions or use software packages where data is not stored in Australia, where the Customer deems the risk of data breach to be greater than the convenience and cost effectiveness of the solution provided.
- GUARANTEE AND INDEMNITY
10.1. In consideration of Hot Apple Distribution agreeing to enter into this agreement with the Customer and also where Credit is granted to the Customer, the Guarantor unconditionally and irrevocably guarantees the due and punctual performance by the Customer of all of its obligations under these terms and conditions.
10.2. As a separate obligation, the Guarantor, as principal debtor, indemnifies Hot Apple Distribution in respect of any loss, damage, cost or expense that Hot Apple Distribution suffers or incurs because the Customer does not perform any of its obligation under these terms and conditions.
10.3. This Guarantee and Indemnity is a continuing security. The Customer will only be released from its obligations under it when Hot Apple Distribution releases the Guarantor in writing.
10.4. Hot Apple Distribution does not have to incur any expense or make any payment before it enforces its rights under this Guarantee and Indemnity.
10.5. The Guarantor's liability under this Guarantee and Indemnity is unconditional and is not affected by anything, including:
(a) Hot Apple Distribution not registering a security, releasing a security or losing the benefit of a security;
(b) if two or more persons comprise the Guarantor, Hot Apple Distribution releasing one or more of them from this Guarantee and Indemnity;
(c) the death, mental or physical disability or insolvency of any person including the Customer or the Guarantor.
10.6. The Guarantor cannot, without the prior written consent of Hot Apple Distribution:
(a) prove or claim an amount in the liquidation or bankruptcy of the Customer;
(b) claim an amount from the Customer or, if two or more persons comprise the Guarantor, another Guarantor under a right of indemnity;
(c) reduce the Guarantor’s liability under this Guarantee and Indemnity by claiming a right of set-off or counterclaim.
10.7. The liability of the Guarantor extends to all amounts which Hot Apple Distribution has been paid by the Customer but which Hot Apple Distribution is obliged to repay on the grounds of preference or otherwise.
11.1. The Customer indemnifies Hot Apple Distribution and its officers, volunteers, employees and agents from and against any claim, action, demand, damage, loss, liability, cost, charge, expense, outgoing, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with:
(a) any breach of this Agreement by the Customer;
(b) any breach of law or infringement of a third party’s rights (including Intellectual Property Rights); and
(c) any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation,
to the extent caused or contributed to by any act or omission of the Customer.
11.2. The Customer acknowledges that Hot Apple Distribution is only the distributor and not the manufacturer of the Goods, therefore although Hot Apple Distribution will use best endeavours to assist in any Warranty disputes, the Customer holds Hot Apple Distribution harmless for any claim, action, demand, damage, loss, liability, cost, charge, espense, outgoing, fine or payment which the Customer suffers as a direct result of Good which is defective or not fit for purpose.
11.3. Notwithstanding any other provision of this Agreement, the liability of a Party arising under and/or in connection with this Agreement will exclude any liability for indirect or consequential loss.
11.4. To the maximum extent permitted by Law, the aggregate liability of either party in respect of any causes of action arising under or in connection with this Agreement, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to an amount equal to the cumulative total Contract Price paid or payable by the Customer to Hot Apple Distribution under this Agreement or in connection with which the liability of that party arises.
12.1. All notices for the Parties must be provided to the following address as provide for the Parties in the Schedule.
12.2. A notice or other communication which may be given to or served on either Party under the Agreement is deemed to have been duly given or served if it is in writing, signed by the Party giving the notice (“the first Party”) and is either delivered by hand, posted or a copy transmitted via electronic mail or other electronic means to the other Party at the address set out in the Schedule, or such other address as is notified in writing to the first Party from time to time.
12.3. Such notice or other communication is deemed to have been duly received:
(a) if delivered by hand – at the time when the first Party holds a receipt for that document signed by a person apparently employed at that address for service;
(b) if sent by post – at the time when, in the ordinary course of the post, it would have been delivered at the address to which it is sent; or
(c) If sent via electronic mail or other electronic means – at the time when the other Party acknowledges receipt by any means.
12.4. If delivery or receipt of a notice or communication occurs on a day other than a Business Day or is later than 4:00 pm (local time of the Customer’s address or as otherwise agreed between the Parties) it will be taken to have duly occurred at 9:00 am (local time of the Customer’s address or as otherwise agreed between the Parties) on the next Business Day.
13.1. Nothing in this clause 13 prevents either Party from exercising its rights under this Agreement, which may include commencement of court proceedings.
13.2. The Parties agree to use reasonable commercial efforts to resolve by negotiation any problem that arises between them under this Agreement. Neither Party will resort to legal proceedings until the following process has been exhausted, except if it is necessary to seek an urgent interim determination.
13.3. Each Party will bear its own costs in relation to its participation in any dispute resolution process. Costs resulting from the engagement of a mediator under clause 13.5 will be equally shared between the Parties.
13.4. If a dispute arises (including a breach or an alleged breach) under this Agreement, then the Party disputing the issue will provide the other Party with written notice of the nature and details of the dispute. If the dispute is not resolved at an operational level or is sufficiently serious that it cannot be resolved at the operational level, the senior management representatives of each of the Parties will endeavour to agree upon a resolution. The Parties acknowledge that it is in their respective interests to resolve disputes at this level.
13.5. Should the senior management representatives fail to reach a solution in accordance with clause 13.4 within 15 Business Days (or such other period as the Parties agree) of receipt of a notice of dispute, the Parties may proceed to mediation. The mediator will be agreed between the Parties or, failing agreement, will be an accredited mediator appointed by the Chairman of the New South Wales Chapter of the Institute of Arbitrators and Mediators Australia.
13.6. The Parties agree to abide by the mediation rules agreed between them, or failing agreement, the mediation rules of the Institute of Arbitrators and Mediators Australia, in seeking to resolve the dispute in accordance with this clause 13.
13.7. Notwithstanding the existence of a dispute, each Party will continue to perform its obligations under this Agreement, wherever practicable.
14.1. The Customer may terminate this Agreement by written notice to Hot Apple Distribution effective immediately.
14.2. Upon termination of this Agreement, the sole liability of the Customer to Hot Apple Distribution will be to pay for all products ordered from Hot Apple Distribution and/or any Third Party engaged by the Customer in accordance with, or incidental to, this Agreement up to the effective date of termination, including the notice period as detailed in clause 14.1, and any agreed expenses incurred.
14.3. Hot Apple Distribution may terminate this Agreement immediately upon written notice to the Customer if the Customer:
(a) commits a material breach of an obligation of this Agreement and does not remedy that breach within 10 days of receipt of a notice from Hot Apple Distribution specifying the breach and requiring the breach to be remedied; or
(b) for any reason by giving no less than 20 Business Days prior written notice to the Customer terminate this Agreement; or
(c) is the subject of an Insolvency Event.
- FORCE MAJEURE
15.1. If a Force Majeure event arises, the affected Party will give written notice to the other Party as soon as reasonably practical of the:
(a) Force Majeure event;
(b) anticipated duration of any delays arising from the Force Majeure;
(c) obligations the affected Party is prevented and/or likely to be prevented from performing under this Agreement; and
(d) affected Party’s plans to work around or minimise the impact of the Force Majeure.
15.2. A Party will be excused from performing its obligations to the extent that it is caused by Force Majeure event. Each Party will make all reasonable efforts to minimise the effects of the Force Majeure event. If the affected Party is prevented by the Force Majeure event from performing its obligations under this Agreement for 20 Business Days or such other period as agreed in writing between the Parties, then the other Party may, in its sole discretion, immediately terminate this Agreement by giving written notice of termination to the affected Party.
15.3. Where this Agreement is terminated by a Party in accordance with clause1:
(a) Hot Apple Distribution will be entitled to payment for all work performed and Accepted by the Customer up to the date of termination; and
(b) Parties will otherwise bear their own costs and will be under no further liability to perform this Agreement.
16.1. This Agreement including the Credit Terms constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, in relation to its subject matter. All prior negotiations, understandings, representations, warranties and commitments are superseded.
- CHANGE OF OWNERSHIP OF CUSTOMER ENTITY
17.1. If the ownership of the Customer's business is reconstituted so that the business is conducted by a company instead of a sole trader or partnership and if the Customer continues to have an interest in that company (whether as a director, shareholder or employee) the Customer:
(a) will continue to be liable under this Agreement for Goods ordered up to the date of the reconstitution of the Customer's business; and
(b) agrees to guarantee the company's liability in respect of any further Goods which Hot Apple Distribution supplies to the company under the terms of this Agreement; and
(c) will provide the details of the new entity within upon the very next purchase order including any new ABN or ACN.
17.2. In the event the Customer enters into this Agreement as a partnership, company or corporate trustee, and there is a change to the partners, directors or more than 50% of the shareholding of the Customer’s corporate entity or trust, then the Customer must enter into a new Agreement whereby the new partners, entity, directors and guarantors as the case may be are actively agreeing to the Terms, prior to a new order being fulfilled or credit being given.
- ASSIGNMENT AND NOVATION
(a) The Customer may not assign or novate, in whole or in part, this Agreement without first obtaining the prior written consent of Hot Apple Distribution. In circumstances where the Parties agree to a novation of this Agreement, the Agreement will be varied in accordance with clause 3.
(b) Hot Apple Distribution may assign its rights under this Agreement without the consent of the Customer.
19.1. Hot Apple Distribution excludes any express or implied condition or warranty, statutory or otherwise which is not stated in this Agreement to the extent permitted by the law of Australia or the law of any State or Territory of Australia.
19.2. Warranty term applies from the date of consumer purchase (verification required). Hot Apple Distribution reserves the right to repair or replace any instrument or part claimed.
19.3. Warranty applies in accordance with Manufacturer’s terms and conditions, and only where good care in every regard has been taken.
19.4. Warranty does not apply where unauthorised repair has otherwise occurred.
19.5. All warranty claim returns must be sent freight pre paid and fully insured. Hot Apple Distribution accepts no responsibility whatsoever for freight cost, loss or damage either from or to the sender, whether dealer or consumer.
19.6. Queries as to Product Warranty may be made to Hot Apple Distribution for a ruling.
19.7. Hot Apple Distribution liability for a breach of any warranty or condition will be limited to one or more of the following:
(a) the replacement of the Goods or supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods;
(d) the payment of the cost of having the Goods repaired.
19.8. Before the Customer returns any Goods to Hot Apple Distribution for repair under warranty, the Customer must first obtain Hot Apple Distribution approval in writing for the return of the Goods.
19.9. The Customer agrees that:
(a) it must pay freight charges both to and from either, Hot Apple Distribution or the designated repairer; and
(b) it is the Customer's responsibility (or the Customer's customers responsibility if the goods have been on sold) to effect insurance on any Goods returned for repair.
19.10. The Customer will not be entitled to make a claim under the warranty in clause 19 unless it:
(a) notifies Hot Apple Distribution in writing at the address stated in the Credit Application within 7 days of becoming aware of the defect setting out the details of the defect; and
(b) provides Hot Apple Distribution with prompt access to the defective Goods for the purposes of examining them and determining if the Customer's claim in justified.
- TITLE TO GOODS & PASSING OF RISK
20.1. Title to the Goods will not pass to the Customer until the Customer has made the following payments to Hot Apple Distribution in full:
(a) the Price for those Goods; and
(b) all Outstanding Debts.
20.2. The Customer acknowledges that the following acts alone will not divest Hot Apple Distribution of its title in the Goods:
(a) delivery of the Goods to the Customer;
(b) Hot Apple Distribution’s acceptance of the Customer's orders for other goods.
20.3. Until title in the Goods passes to the Customer under clause 20, the Customer:
(a) will hold the Goods as Hot Apple Distribution bailee and fiduciary;
(b) must keep the Goods separate from its own and those of third parties,
(c) must keep the Goods properly stored, protected and insured;
(d) may only re-sell the Goods as Hot Apple Distribution’s agent and must not represent to others that it is acting for Hot Apple Distribution (and Hot Apple Distribution will not be liable under any such re-sale contracts);
(e) acknowledges that if it re-sells the Goods under clause 20.3(a), the proceeds resulting from any re-sale belongs to Hot Apple Distribution.
20.4. The Customer agrees to indemnify Hot Apple Distribution against all losses and expenses which Hot Apple Distribution incurs as a result of the use or storage of the Goods by the Customer.
20.5. Despite clause 20.1, the parties agree the risk in the Goods passes to the Customer upon Hot Apple Distribution delivering the Goods to the Carrier.
- RIGHT TO REPOSSESS GOODS
21.1. Hot Apple Distribution is entitled to retake possession of the Repossessed Goods, if:
(a) the Customer fails to pay the full Price on or before the Due Date;
(b) the Customer commits an act of bankruptcy or makes arrangements with its creditors;
(c) the Customer becomes an externally-administered body within the meaning of the Corporations Law or is wound up voluntarily;
(d) the Customer ceases to carry on business;
(e) the Customer has judgment made against it which is not set aside or satisfied within 7 days; or
(f) the person who has given a guarantee in terms of the Guarantee clause of this Agreement commits an act of bankruptcy.
21.2. The Customer authorises Hot Apple Distribution (and its agents) for the purpose of enforcing its rights under clause 21.1, to enter upon any premises where the Repossessed Goods are being stored or where Hot Apple Distribution reasonably believes the Repossessed Goods are being stored.
21.3. Hot Apple Distribution has the right to resell any Repossessed Goods.
21.4. If full payment has not been made by the due date and Hot Apple is required to repossess the Goods, no monies paid in part for those Goods, will be returned to the Customer.
- FREIGHT AND INSURANCE
22.1. All orders are ex-Sydney and, subject to clause 20.2, Hot Apple Distribution will organise at the Customer's expense the freight of the Goods by the Carrier to the Customer.
22.2. If the Customer gives Hot Apple Distribution written notice of the Carrier and method of freight before the date of dispatch, Hot Apple Distribution will arrange for the Goods to be delivered to the Customer in accordance with that method and using the Carrier specified in that notice.
22.3. The delivery will be to the place nominated by the Customer (or if no place is nominated, the address set out in the Credit Application).
22.4. Unless the Customer gives contrary written directions to Hot Apple Distribution, Hot Apple Distribution will not effect freight insurance on Goods it dispatches. If insurance is requested a nominal charge based on the value of the shipment will be made to cover transit damage.
- RETURN OF GOODS
23.1. To the extent permitted by the Consumer Law, the Customer may return Goods to Hot Apple Distribution only if:
(a) Hot Apple Distribution has, in its absolute discretion, given its approval to the return of the Goods in writing; and
(b) Hot Apple Distribution and the Customer have agreed on the amount to be paid to the Customer under clause 9.2 and the freight arrangements for the return of the Goods.
(c) Hot Apple Distribution’s Invoice Number & Date must be provided by the Customer;
(d) The carriers consignment number or similar receipt of delivery number must be provided.
23.2. On return of the goods, Hot Apple Distribution will pay the Customer an amount which is:-
(a) 100% of the Price paid by the Customer, if the Goods are returned to Hot Apple Distribution within 7 days of the date of delivery to the Customer; or
(b) 80% of the Price paid by the Customer, if the Goods are returned to Hot Apple Distribution within 30 days of the date of delivery to the Customer.
(c) Goods cannot be returned after 30 days of the date of delivery to the Customer.
The Customer must not reduce any fees or other charges or costs payable to Hot Apple Distribution under this Agreement by any fee, credit, rebate or other amount which is payable to the Customer.
This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.
A waiver in respect of a breach of a term of this Agreement by the other Party will not be taken to be a waiver in respect of any other breach. The failure of either Party to enforce a term of this Agreement will not be interpreted as a waiver of that term.
- RELATIONSHIP OF PARTIES
Nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise between the Parties.
If any part of this Agreement is void or voidable, invalid, illegal or unenforceable then, to the extent permitted then that part is severed from this Agreement but without affecting the continued operation of the remainder of this Agreement.
- FURTHER ASSURANCE
Each party must promptly execute all documents and do all things necessary or desirable to give full effect to the arrangements contained in this Agreement.
- RIGHTS CUMULATIVE
The rights and remedies provided under this Agreement are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.
Clauses 6, 7, 8, 9, 10, 11, 12, 13, 16, 21, 23 and 32 will remain in full force and effect following the expiry or termination of this Agreement.
The laws of the State of New South Wales govern this Agreement and the Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
- SPECIAL CONDITIONS
The special conditions attaching to this contract, if any, are contained in the Schedule.