1. Definitions
1.1 Definitions
Unless the context otherwise requires, the meanings of terms used in the Agreement are as follows:
a) Account Application means any account application or similar form completed by the Customer that relates to the supply of Products by Sociaall, including any associated guarantee given in favour of Sociaall;
b) Additional Charge means any fees or charges for additional goods provided or additional services performed (or arranged to be performed) by Sociaall at the Customer’s request or reasonably required as a result of the Customer’s conduct, including any fees or charges incurred or payable by Sociaall in connection with arranging for the delivery, freight, storage or insurance of the Products;
c) Sociaall means Sociaall Pty Ltd ABN 12 640 806 604 trading as Sociaall and, where the context requires, any of its related bodies corporate as that term is defined by the Corporations Act 2001 (Cth);
d) Sociaall Policies each of Sociaall’s published or otherwise disclosed policies in effect from time to time, including its privacy policy and privacy statements, its Website Terms of Use, any of Sociaall’s terms applicable to online portals or other electronic facilities and any of Sociaall’s other policies referred to in any of such documents or these Standard Terms;
e) Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales;
f) Customer means the person that orders Products from Sociaall from time to time, including any persons named as the ‘customer’, ‘applicant’ or similar expression in a corresponding Account Application and, where the context permits, the officers, employees and agents of the foregoing;
g) Guarantor means any person that has provided a guarantee or indemnity to Sociaall in connection with any obligations of the Customer from time to time;
h) Liability includes any cost, loss, liability, charge (government or otherwise), tax, duty, penalty, fine, expense (including advisor’s and solicitors’ fees on a full indemnity basis), demand, proceeding, suit, action or cause of action, whether arising in contract, tort (including negligence), under statute or otherwise, of whatever nature, known or unknown, liquidated or unliquidated, actual or contingent;
i) Order means an order for Products placed by or on behalf of the Customer from time to time, and where an order is subsequently amended, refers to the final amended order that is accepted by Sociaall in accordance with these Standard Terms;
j) Products means any goods (as well as any ancillary or related services) supplied or procured by Sociaall for the Customer from time to time, and when the term is used in the context of a particular Order means the Products the subject of that Order;
k) Standard Terms means the standard terms and conditions contained in this document, as amended from time to time;
l) Website means Sociaall’s website, located at the following URL: www.sociaall.com or such other of Sociaall’s websites from time to time; and
m) Website Terms of Use means the terms of use and related Sociaall policies published on the Website, which at the date of these Standard Terms is located here, including any amended or updated terms of use or policies available on the Website from time to time.
2. General
2.1 Documents comprising the Agreement
a) The ‘Agreement’ comprises these Standard Terms, any Account Application and any guarantee provided by a Guarantor (but excludes any delivery notes, additional comments or terms submitted by the Customer with an Order, including via the Website).
b) In the event of any inconsistency between the documents constituting the Agreement, unless expressly stated to the contrary, the documents will rank in the order of precedence in the order in which they are listed in paragraph (a) above.
c) To the extent the law permits, no other terms or conditions (including those contained in any document submitted by the Customer) will apply to the supply of any Products nor will it impose any obligations on Sociaall, except where terms and conditions form part of the Agreement pursuant to paragraph (a) above.
2.2 When Customer bound
Subject to the preceding clause, these Standard Terms apply to all transactions between the Customer, the Guarantor and Sociaall relating to the sale of Products and the provision of related services (including all quotations, contracts and variations) and the Customer and the Guarantor will be bound by these Standard Terms from the time it first signs a document forming part of the Agreement or from when the Customer first places an Order (whichever is the earlier).
2.3 Update to Standard Terms
To the extent the law permits, Sociaall may amend these Standard Terms and will notify the Customer of the amendments by publishing the amended Standard Terms on its Website or by written notice to the Customer (including by providing notification on invoices issued to the Customer), and the amended terms will apply to any Orders placed for Products after such notice, unless the Customer notifies Sociaall that it does not accept the amended Standard Terms and elects to terminate the Agreement. If the Customer provides such notification, then without prejudice to Sociaall’s other rights Sociaall may cancel any outstanding Orders and the Customer will remain liable for any Products supplied prior to the termination of the Agreement.
3. Orders
3.1 Submitting Orders
The Customer may submit an Order for the purchase of the Products through any means permitted by Sociaall from time to time (which may include by telephone, email, letter or through the Website).
Every Order must include any information Sociaall may require, including details of the relevant Products to be ordered (and any applicable product codes) and the Customer’s requested collection or delivery date and address (if applicable).
Following receipt of an Order, Sociaall may notify the Customer of any required changes to be made to, or additional matters to be included in, the Order (including the prices or any changes to the prices for the Products the subject of the Order) and any Additional Charges relevant to the Order (which may be an estimate or rate). If this occurs, the Customer must promptly confirm in writing that it accepts or rejects the variations proposed by Sociaall, prior to Sociaall being obliged to accept or fulfil the Order.
3.2 Acceptance of Orders
Sociaall may either accept or reject any Order submitted by a Customer in whole or in part. Any costs incurred by Sociaall in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
If Sociaall accepts an Order submitted by the Customer, Sociaall shall provide written notice of its acceptance to the Customer, at which point a contract is formed for the supply of the relevant Products on the terms of the Agreement. However, any electronic notification that an Order has been accepted via the Website is subject will not be treated as acceptance of an Order.
Once Sociaall accepts an Order, it will advise the Customer of the proposed date that the Products will be ready for collection (or delivery, if agreed by Sociaall). To the extent the law permits, any indication in any Order or communication from Sociaall of the time frame for the supply of the Products is an estimate only and Sociaall will not be liable to the Customer for any Liability suffered if the time frame is not met.
3.3 Variation of Orders
An Order cannot be cancelled or varied without Sociaall’s consent. Where an Order is cancelled by the Customer, the Customer indemnifies Sociaall against all Liability incurred by Sociaall as a result of the cancellation, including any loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
If the Customer wishes to vary an Order after it has been accepted by Sociaall, Sociaall reserves its right to further amend the Order or its quoted prices, including by adding Additional Charges in respect of any extra costs incurred in connection with the variation. Sociaall may accept or reject any variation in its absolute discretion.
4. Pricing, invoicing and payment
4.1 Price for Products
If the Products are purchased via the Website, the price payable for the Products will be the price advertised on the Website (subject to any contrary provisions in the Website Terms of Use). Otherwise, the price payable for the Products will be the price advised to the Customer by Sociaall prior to (or at the time of) acceptance of the Order, and if no such price is advised then Sociaall will charge its then current prices at the time of acceptance of the Order. Any indication of prices in any advertised or other material is not binding on Sociaall.
The prices and charges referred to in the Order or notification from Sociaall do not include any charges for the delivery of the Products, do not include GST, taxes, duties or Additional Charges or other sums required to be paid to Sociaall in accordance with these Standard Terms, which the Customer must pay in addition to the agreed prices for the Products.
4.2 Quotes
Sociaall may, from time to time, provide Customers with quotes for the prices of its Products. If Sociaall provides a Customer with a quote, the price for the Product specified in the quote is valid for thirty (30) days or the period specified in the quote, whichever is shorter. Nothing in this clause 4.2 shall be construed as prejudicing Sociaall’s ability to either accept or reject an Order pursuant to clause 3.2(a).
Additional Charges
a) Where these Standard Terms entitle Sociaall to impose any Additional Charges, the amount of the Additional Charge will be calculated as follows:
i) where the sum or rate of the Additional Charge is included in an accepted Order or invoice (including a pro forma invoice) that is not later varied in accordance with these Standard Terms, the sum or rate specified in the Order or invoice (as the case may be);
ii) in all other cases, the sum reasonably determined by Sociaall that represents is full costs and expenses incurred in connection with the matter giving rise to the Additional Charge plus a mark-up of 20%.
The services for which Sociaall may impose Additional Charges include specific packaging, freight, transport, handling (including unloading Products at the Customer’s premises) or insurance charges not specifically included in the accepted Order.
4.4 Invoicing
a) Sociaall may issue an invoice (including a pro formal invoice ) to the Customer at any time, including at the time of accepting an Order or after the Products have been supplied.
b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as the price for the Products as set out in the accepted Order (as varied in accordance with these Standard Terms) and any Additional Charges. This paragraph does not release the Customer from any other obligations to pay as provided for in the Agreement.
c) Sociaall is under no obligation to supply or deliver any Products when any invoice has not been paid when due. Despite the Customer paying for any Products prior to supply, the Customer obtains no rights in such Products unless and until title passes to the Customer in accordance with the Agreement.
4.5 Payment terms
a) Unless Sociaall has agreed to provide the Customer credit terms in respect of the relevant Order, the Customer must pay any invoice issued by Sociaall immediately upon receipt and in any event prior to collection of any Products (or dispatch of the Products from Sociaall’s premises, if so agreed by Sociaall). Any requested credit amount, terms or limit in any Account Application will not be binding on Sociaall unless Sociaall expressly approves any credit terms in writing.
b) All monies are payable to Sociaall at its principal place of business in the manner Sociaall reasonably requires from time to time. Sociaall may apply any payment received from the Customer or the Guarantor to any amount owing or payable by the Customer (or any other persons comprising the Customer) or the Guarantor to Sociaall from time to time on any account whatsoever.
c) The Customer will pay Sociaall on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to Sociaall, calculated on daily balances and compounding monthly until paid. Interest is payable at the end of the month in which the interest accrued and earlier on demand. The Customer must also pay all costs and expenses, and indemnify Sociaall against any Liabilities incurred by Sociaall, associated with collecting any overdue amounts or enforcing Sociaall’s rights.
d) The Customer is not entitled to withhold or retain any money owing to Sociaall notwithstanding any default or alleged default by Sociaall, including in respect of the supply of allegedly faulty or defective Products or a delay in the provision of Products. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
4.6 Credit terms
a) Sociaall may agree to provide the Customer with credit terms in respect of any particular Order or on an ongoing basis until revoked on such conditions imposed by Sociaall from time to time (which will include the requirement for the Customer to pass credit checks and be accepted by Sociaall’s relevant insurers).
b) If credit terms are offered, then payment is to be made strictly in accordance with those credit terms and in any event on or before the last Business Day of the calendar month following the calendar month in which the relevant Products were supplied.
c) Sociaall may revoke the credit terms by notice in writing to the Customer if the Customer fails to make payment of overdue amounts for a continuous period of 5 Business Days or the Customer otherwise breaches the Agreement.
d) If the credit terms offered by Sociaall are revoked in accordance with clause 4.5(b) and any further Orders are accepted by Sociaall from the Customer, then those Products must be paid for prior to collection or dispatch from Sociaall’s premises.
e) A statement in writing signed by an authorised officer of Sociaall from time to time setting out the moneys due or owing to Sociaall at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
4.7 GST
a) In the Agreement and unless the contest otherwise requires:
i) GST and GST Law have the same meaning they are given in A New Tax System (Products and Services Tax) Act 1999 (Cth) and any words and expressions defined in the GST Law have the same meaning in clauses concerning GST; and
ii) references to GST also include references to any other indirect transaction taxes or consumption taxes, including any value added tax, goods and services tax, sales tax or similar tax, wherever imposed.
b) Unless Sociaall otherwise agrees in the Order, any amounts quoted or prices payable for any supply to be made by Sociaall does not include:
i) GST, and the Customer must pay an amount equal to any GST for which Sociaall may be liable on the relevant supply at the time of payment for the supply (or such later time as Sociaall provides a tax invoice or adjustment note for the supply); or
ii) any other taxes, duties, excise fees, tariffs or other government or mandatory charges that may apply in connection with the supply of the Products (except for any income tax imposed directly on Sociaall), which will be the Customer’s responsibilities and the Customer must pay an amount equal to any liability relating to the foregoing at the time of payment for the Products or otherwise on demand.
iii) If a party provides payment for a claim or a right to claim under or in connection with the Agreement (for example, for a breach of any warranty or for reimbursement of any expense) that gives rise to a liability for GST, the provider must pay, and indemnify the claimant against, the amount of that GST.
5. Terms of supply of Products
5.1 Delivery of the Products
Sociaall may, in its absolute discretion, agree to deliver the Products. If Sociaall has agreed to deliver the Products, then unless Sociaall otherwise agreed at the time of accepting the Order:
a) the delivery terms will be notified to the Customer prior to dispatch of the Products;
b) the Customer must arrange for all approvals or clearances required, as well as the safe unloading of the Products at the delivery location at the time the Products are delivered, and risk in the Products will pass at the time immediately before unloading of the Products at the delivery location; and
c) if the prices in the Order do not specifically include Sociaall’s costs in connection with delivery or where the Customer requests Sociaall or its delivery provider to unload or place the Products at a location other than on the street at the delivery location, then the Customer will incur Additional Charges in respect of the delivery which will include the costs charged to Sociaall plus a mark-up of 20%.
5.2 Collection of the Products
a) If Sociaall has not agreed to deliver the Products to the Customer, then Sociaall will notify the Customer of the date that the Products are be available for collection as well as the collection address, and the Customer must (at its cost and risk) arrange for the collection, loading and transport of the Products from that premises (during normal business hours) on the date so notified and risk in the Products will pass once the Customer begins loading the Products. For the avoidance of doubt, Sociaall will not be liable for any damage to the Products in transit where the Customer has engaged a third party to arrange delivery of the Products
a) If the Customer does not collect the Products from Sociaall’s premises within 10 Business Days of the collection date notified to the Customer, then risk in the Products passes to the Customer from that date and Sociaall may store the Products and charge the Customer storage costs and expenses as Additional Charges. If the Products are not collected within 30 days of the collection date notified to the Customer, then Sociaall may dispose of the Products and recover any Liability incurred by Sociaall.
5.3 Acceptance of goods
The Customer undertakes to promptly inspect the Products upon receipt for any defects, faults or other non-compliance with the Agreement. If the Customer fails to notify Sociaall in writing of any defects, faults or other non-compliance with the Agreement within 10 Business Days from date of delivery or collection, then the Customer is deemed to have accepted the Products and that the Products are fully complaint with the Agreement. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
5.4 Risk and title
a) Property and title in Products does not pass to the Customer until all money owing to Sociaall on any account is paid in full without any set off or counterclaim.
b) If the Customer fails to pay any amounts due to Sociaall, Sociaall, its agents and their respective employees and contractors have the right and are granted an irrevocable licence to, at any time and without notice, enter the Customer’s premises (or any other location) to exercise Sociaall’s rights under the Agreement, including the right to repossess the Products or any part of them.
c) Pending payment in full, the Customer must ensure that if the Products are damaged or destroyed then the proceeds of any insurance policy are paid directly to Sociaall.
5.5 PPSA & Security
a) In this clause 5.5 and unless the context otherwise requires, capitalised terms that are not otherwise defined in these Standard Terms have the same meaning given to them in the Personal Property Securities Act 2009 (Cth) (PPSA).
b) In addition to any lien, security or rights as owner that may arise in Sociaall’s favour under the Agreement, by operation of law or statue (which is hereby expressly preserved), the Customer also grants Sociaall a Security Interest (which, for the avoidance doubt, will be a Purchase Money Security Interest) in the Products and to secure the Customer’s obligations to Sociaall from time to time. Sociaall may effect a registration on the Register in any manner it sees fit.
c) To the extent the law permits, the Customer (and any Guarantor) waives any rights it has under the PPSA (including any rights to receive notices, statements or documents from Sociaall), Sociaall need not comply with any provisions of the PPSA (but Sociaall may rely on all rights and remedies under the PPSA and Sociaall will separately have all the rights and remedies under Chapter 4 of the PPSA as if they were stated in these Standard Terms but without any corresponding obligations). The Customer (and any Guarantor) must do all things requested to preserve Sociaall’s rights under the Agreement (including providing all information and notifying Sociaall of any changes to any details or information that may be relevant to any Security Interest held by Sociaall and signing any further documents requested by Sociaall to give effect to its security).
d) No party will disclose any information of the kind mentioned in section 275(1) of the PPSA, except where disclosure is required by section 275(7). Sociaall will not be liable to the Customer for disclosing any information in contravention of this paragraph.
e) Each of the officers and principals of the Customer who are named in any Account Application or otherwise sign any constituent parts of the Agreement will be considered a ‘Guarantor’ for the purposes of this Agreement.
f) In consideration of Sociaall supplying Products to the Customer at the request of each Guarantor, each Guarantor irrevocably guarantees to Sociaall the due payment and punctual performance of all the obligations and Liabilities of the Customer in connection with the Agreement (including the accuracy of any warranties given to Sociaall) from time to time and indemnifies and undertakes to keep indemnified Sociaall against any and all Liabilities that Sociaall may suffer, incur or sustain in any way in connection with any breach of the Agreement or any laws by the Customer or any Guarantor. This is a continuing guarantee and indemnity and to the extent the law permits Sociaall’s rights and the Guarantor’s obligations and Liabilities will not be prejudiced by any act or omission of Sociaall or anything else whatsoever, including any failure on the part of any person who is intended to be a Guarantor not being bound by the Agreement.
g) The Guarantor acknowledges receiving good consideration for its covenants under the Agreement and acknowledges that Sociaall would not apply any Products to the Customer without the guarantees.
h) The provisions of Sociaall’s standard long-form guarantee (which at the date of these Standard Terms is available here, or as otherwise notified to the Guarantor or Customer by Sociaall from time to time) (referred to as the ‘Standard Guarantee’ in the Agreement) will be binding on the Guarantor and will be deemed to be incorporated into the guarantee given by the Guarantor pursuant to these Standard Terms with such changes as are necessary to give effect to this provision.
i) Without prejudice to any other rights of Sociaall under the Agreement or at law, the Customer (and any Guarantor) grants a Security Interest in all present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) in which any of them have a right or Interest and separately grants a fixed charge over all present and after-acquired other property in which any of them have a right or Interest from time to time.
j) The Customer and the Guarantor agree to sign all documents and do all things requested by Sociaall from time to time to enable Sociaall to obtain, register and exercise any rights it has in connection with any security it has over the property of the Customer or the Guarantor. The Customer and the Guarantor agree that Sociaall’s rights and powers under the Standard Guarantee will apply to the security taken pursuant to these Standard Terms and the Agreement, with such changes as are necessary to give effect to this provision.
k) When exercising any security arising in connection with the Agreement or any guarantee, Sociaall may do anything in respect of the property subject to the security that the person granting the security would otherwise be capable of doing at law, including appointing a receiver in respect of the property, and through itself or through an agent exercising the powers granted to receivers under section 420(1) and (2) of the Corporations Act 2001 (Cth) as if references in that section to property were references to the relevant property the subject of the security and references to the receiver were references to Sociaall. Any receiver appointed in connection with the Agreement must be fully indemnified by the Customer for any Liabilities incurred and will always by the Customer’s agent.
6. Warranties and liability
6,1 Warranties by Customer
To the extent permitted by law, the Customer warrants, acknowledges and agrees at all times that:
a) all Products are being purchased by the Customer are used solely for use in the Customer’s business and the Customer is not purchasing the Products for personal or domestic use;
b) any person submitting an Order, whether an officer, employee, contractor, agent, or other person with ostensible authority to do so on behalf of the Customer, is properly authorised by the Customer, and the person submitting any Order or signing any constituent part of the Agreement separately warrants that he or she is duly authorised to bind the Customer;
c) the particulars in the Order and all other information provided to Sociaall in connection with the Agreement (including in any Account Application) are true, correct and not misleading in any respect (including by way of omission) and are up to date;
d) it has (and ensured its officers, employees and agents have) read, understood and agreed to each of Sociaall’s Policies (which, for the avoidance of doubt, do not form part of the Agreement) and the terms of the Agreement prior to placing any Order and all required consents, waivers or agreements are in place to ensure continued compliance with the foregoing; and
e) if the Customer or a Guarantor is the trustee of any trust, the Agreement is binding on the Customer and the Guarantor (as the case may be) in its personal capacity and in its capacity as trustee of any trust, the Customer and the Guarantor (as the case may be) is validly appointed as the sole trustee and will not allow any new trustee to be appointed and the Customer and the Guarantor (as the case may be) has the right to be fully indemnified out of the trust assets and from the beneficiaries for all liabilities in connection with the Agreement.
6.2 Sociaall Policies
The Customer and the Guarantor acknowledge and agree that they have read and understood the Sociaall Policies and they undertake to ensure that the Customer, the Guarantor and their respective employees, agents and contractors at all times comply with the Sociaall Policies (which, for the avoidance of doubt, will not form part of the Agreement or create any enforceable rights against Sociaall). Despite the foregoing, where the Sociaall Policies grant Sociaall rights (including in respect of pricing errors on the Website or in respect of the handling of personal information), those rights are enforceable by Sociaall despite the Sociaall Policies not forming part of the Agreement.
6.3 Privacy
Subject to any applicable restrictions in the Privacy Act 1988 (Cth), the Customer, the Guarantor and their respective officers authorise Sociaall to make consumer and commercial credit enquiries concerning them in connection with this Agreement (or Sociaall’s decision to enter into, or enforce, it), and to exchange with any credit reporting body and any other person (including a ratings agency, a credit enhancer or other credit providers) any information concerning them (including credit information, repayment history, default information and other credit-related information as described in Sociaall’s Policies).
6.4 Implied terms
a) Subject to paragraph (b) below, any condition or warranty which would otherwise be implied in the Agreement which is capable of being excluded is hereby excluded, and all information, specifications and samples provided by Sociaall in relation to the Products are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Products will not entitle the Customer to reject the Products, or to make any claim or seek to recover any Liabilities in respect of them.
b) The Australian Consumer Law may give to the Customer certain guarantees. Where such guarantees apply to the supply of Products and liability for breach of any such guarantee can be limited, Sociaall’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.
6.5 Manufacturer’s warranties
The Customer acknowledges that Sociaall is not the manufacturer of the Products and that any information provided or published by Sociaall (including via the Website) in respect of the specifications, purposes for use or warranties relating to the Products are for information purposes only and are not binding on Sociaall. Sociaall may assist the Customer in making a claim under any manufacturer’s warranty relating to the Products, subject to the Customer reimbursing Sociaall for its costs in doing so to the extent the law allows Sociaall to recover such costs.
6.6 Indemnity
a) To the extent the law permits, the Customer indemnifies and must keep indemnified Sociaall against any and all Liabilities incurred, suffered or otherwise arising in connection with any of the following:
i) any use of the Products by the Customer or any other acts or omissions of the Customer that are not expressly permitted by the Agreement;
ii) any breach by the Customer or a Guarantor of any provision of the Agreement, Sociaall’s Policies or any other obligation owed to Sociaall or any third party from time to time.
b) To the extent the law permits, Sociaall is not liable for any direct, indirect, punitive, incidental, special, consequential losses or damages (including damages for loss of use, data or profits) arising out of or in any way connected with the provision of or failure to provide Products, whether based on terms of trade, negligence, strict liability or otherwise, even if Sociaall has been advised of the possibility of such losses or damages.
6.7 Returns
In addition to any rights of the Customer under the Australian Consumer Law, Sociaall may accept the return of Products provided all of the following conditions are met:
a) all returns must be approved in writing by Sociaall and will not be offered where the Products are specifically purchased, manufactured, machined or cut to size or are made in accordance with other specifications of the Customer;
b) returns will only be offered where the Products are returned to Sociaall at the Customer’s cost (with freight prepaid) in a saleable condition (including with any brochures and original packaging); and
c) Sociaall reserves the right to charge a handling and restocking fee of up to 20% of the price for the Products and this fee will constitute an Additional Charge. For orders of products which Sociaall does not ordinarily hold in stock, the re-stocking fee may be higher.
7. Termination
a) Sociaall may terminate the Agreement and/or refuse to complete any Order:
i) if the Customer breaches any provision of the Agreement or any of its other obligations to Sociaall;
ii) if the Customer, in Sociaall’s reasonable opinion, operates it business (or is otherwise involved in any act or omission) in a manner that endangers health or safety of the public or consumers of Products, or may prejudice Sociaall’s reputation, goodwill or Intellectual Property Rights; or
iii) if the Customer is insolvent or presumed to be insolvent, commits an act of bankruptcy or is declared bankrupt (as those terms as defined in the Bankruptcy Act 1966 (Cth), has any creditors, debtors or similar petition relating to insolvency presented against it, the Customer is subject to any form of insolvency proceedings, external administration or similar court or voluntary process (including any liquidation, administration, deed or scheme of company arrangement).
b) The Customer must notify Sociaall within 48 hours of the occurrence of any of the events described in paragraph (a) above.
c) The Customer and Sociaall may agree to terminate the Agreement in writing.
d) Sociaall may terminate this Agreement without cause by providing not less than 14 days’ notice to the Customer and if that occurs Sociaall will finalise any Order already accepted, provided no events described in paragraph (a) above have occurred. The Customer and Sociaall may agree to terminate this Agreement in writing.
e) The termination of the Agreement is without prejudice to any rights that Sociaall may have at law or statute (which are hereby expressly preserved) and upon termination all monies owing to Sociaall (whether due for payment or not) will become immediately due for payment.
f) Any obligations of the Customer, or rights of Sociaall, under or in connection with the Agreement that expressly or impliedly survive the termination of the Agreement (or are capable of surviving) will continue in full force and effect.
8, General Provisions
8.1 Notice
Any notice, demand, termination procedure or other communication relating to the Agreement must be given by being personally served on a party, being left at the party’s last known address, being mailed to a party’s last known address (in which case it will be deemed to be served in 2 Business Days after posting) or being sent by email to the address notified by the recipient for sending notices from time to time (which, in the case of Sociaall, is “sales@sociaall.com” in which case it will be deemed to be served on the same day if sent before 4:00 p.m. in the place of receipt.
8.2 Further acts
The Customer and Guarantor must, upon request from Sociaall, promptly do any further act and execute and deliver any further documents which Sociaall may reasonably request to give effect to the Agreement or any of Sociaall’s rights.
8.3 Assignment
The Customer must not assign or otherwise deal with any of its rights or obligations under the Agreement without the prior written consent of Sociaall. Sociaall may assign or otherwise deal with any of its rights or obligations under the Agreement without the Customer’s consent.
8.4 Variation and waiver
Any variation of or to the Agreement will not have any effect whatsoever unless such variation is reduced to writing and signed by Sociaall. Further, any failure of Sociaall to exercise any or all of its rights or powers under the Agreement at any time and for any period of time shall not constitute a waiver of any of Sociaall’s rights or powers arising pursuant to the Agreement.
8.5 No merger
Nothing in the Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that Sociaall may have against another party or any other person at any time.
8.6 Force Majeure
If the performance of the Agreement or any obligation under it (except for any obligation to pay) is prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase in same, default of any suppliers under any contract to which Sociaall is a party or seizure or stoppage of Products in transit), the party so affected (upon giving prompt notice to the other party) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performance and shall continue performance under the Agreement with the utmost despatch whenever such causes are removed or diminished. If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of the Agreement.
8.7 Entire agreement
To the extent the law permits, the Agreement represents all the terms and conditions between the parties, and the Customer (and any Guarantor) acknowledges that it has not entered into the Agreement in reliance on, or as a result of, any promise, representation, statement, conduct or inducement of any kind relating to any matter in connection the Agreement from Sociaall or its agents. The parties agree that the United Nations Convention on Contracts for the International Sale of Products does not apply to the Agreement or the supply of any Products.
8.8 Counterparts
Any documents forming part of the Agreement may be executed and exchanged in any number of counterparts, all of which taken together constitute one and the same document.
8.9 Severance
If any provision of the Agreement in favour of Sociaall exceeds what is permitted by law (Void Term), then the following provisions will apply:
a) the Void Term shall be interpreted read down only to the extent required to ensure it is enforceable; and, if the unenforceability of the Void Term is not rectified by this provision
b) if the Void Term is unenforceable due to it imposing liability on the Customer, then the Customer shall only be liable to the extent that the Customer caused or contributed to the liability (but nothing in this provision will impact Sociaall’s right to receive the price for the Products);
c) if the Void Term is unenforceable due to it releasing Sociaall from an obligation, Sociaall will still be liable to perform that obligation to the extent Sociaall either caused or contributed to the event giving rise to the obligation or breached the Agreement or terms implied by law that cannot legally be excluded,
and if the foregoing does not cure the invalidity or unenforceability, the Agreement does not include the Void Term and the remainder of the Agreement continues in full force.
8.10 Governing Law
The Agreement is governed by the laws of the New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the New South Wales.
8.11 Multiple parties
a) If more than one person is the Customer or the Guarantor, that expression refers to them, and the obligations of the Customer and Guarantor (as the case may be) in connection with the Agreement binds them jointly and severally.
b) Despite the definition of ‘Sociaall’ in clause 1.1 referring to Sociaall’s related bodies corporate, only the entity that is supplying the relevant Products to the Customer will be bound to fulfil the relevant Order. However, each entity that comprises ‘Sociaall’ is entitled to rely on the Customer’s covenants and obligations in connection with the Agreement and enforce same directly against the Customer, and the Customer will be deemed to have received notice of acceptance of such covenants and obligations when the first Order is accepted.
8.12 Discretion
a) Where the Agreement allows Sociaall a discretion or power (including where ‘may’ is used), the discretion or power may be exercised in Sociaall’s absolute discretion, without giving reasons and may be conditional.
b) Where the Agreement requires Sociaall to agree to something or Sociaall’s consent to be obtained, the agreement must be in writing by a duly authorised representative of Sociaall and the consent must be prior written consent.
8.13 Interpretation
In the Agreement:
a) headings used in these Standard Terms are for convenience only and do not affect interpretation of these Standard Terms;
b) the provisions of the Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for proposing or preparing the Agreement or the inclusion of the provision in it or because that party relies on a provision of the provision to protect itself; and
c) the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) are not to be construed as words of limitation and do not limit what else might be included nor does the incorporation of more than one obligation in a provision limit any other obligation contained in that provision,
and unless the context otherwise requires:
d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
e) the singular includes the plural and vice versa and words importing a gender include every other gender;
f) a reference to a clause or paragraph is a reference to a clause or paragraph of these Standard Terms;
g) a reference to a person includes a corporation, trust, partnership, unincorporated body, government agency, or other entity whether or not it comprises a separate legal entity.
h) a reference to a party includes a reference to the party’s executors, administrators, successors, permitted substitutes, permitted assigns and, in the case of a trustee, includes any substituted or additional trustee;
i) a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise) and includes a reference to any variation, replacement or novation of it; and
j) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.