- These terms of trade (hereinafter referred to as ‘Terms’) apply to all transactions between Five Oceans Co Pty Ltd (ABN 19614684141, ACN 614 684 141), of 1/39 Ranley Grove, Paddington QLD 4064, Australia (trading as ‘FiveOceans’ which includes its agents and permitted assigns) and any person, firm, business, partnership or company (hereinafter referred to as ‘Customer’) relating to the sale of Goods, including all quotations, contracts and variations. These Terms take precedence over terms of trade contained in any document of the Customer, communication with the Customer or elsewhere.
- These Terms may not be varied or waived except by FiveOceans upon prior written notice to the Customer.
- FiveOceans may amend any details, and correct any errors or omissions in its offers, quotes, order confirmations or invoices by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
- FiveOceans may provide the Customer with a quote. Any Quote issued by FiveOceans is valid for 30 days from the date of issue.
- Unless otherwise expressly agreed in writing, a Quote does not include delivery and/or installation of the Goods.
- Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to FiveOceans.
- Following provision of a Quote to the Customer, FiveOceans is not obliged to commence work until the Quote has been accepted by the Customer by completing a written (including electronic) order form and returning the form to FiveOceans.
- FiveOceans reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order, subject to clause 24. FiveOceans will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms.
- An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon FiveOceans.
- Every Order by the Customer for the provision of Goods must be submitted in writing either on FiveOceans’ standard Order form on paper or electronically (unless otherwise agreed).
- The Order must clearly identify the Goods ordered and FiveOceans’ Quote if any. Any costs incurred by FiveOceans in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
- Orders must be signed by an authorised representative of the Customer and must specify the desired date of delivery. Notwithstanding the foregoing sentence, FiveOceans is entitled to rely on Orders made by any employee, agent or contractor of the Customer. Such Orders shall be deemed to have been made with the authority of the Customer and will be binding.
- Placement of an Order by the Customer after reasonable notification of these Terms signifies full acceptance by the Customer of these Terms and the most recent Quote.
- The receipt of an electronic or other form of Order confirmation by the Customer does not signify FiveOceans’ acceptance of the Customer’s Order, nor does it constitute confirmation of FiveOceans’ offer to sell. FiveOceans reserves the right at any time after receipt of the Customer’s Order to accept or decline the Order for any reason. Where the Customer submits an Order for Goods FiveOceans shall not be deemed to have accepted such Orders unless it has commenced performance of the Order. FiveOceans may require additional verifications or information before accepting any Order.
- FiveOceans may in its absolute discretion refuse to provide Goods where:
- Goods are unavailable for any reason whatsoever;
- credit limits cannot be agreed upon or have been exceeded; or
- payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of FiveOceans, associated with the Customer under the same or another supply contract, has not been received by FiveOceans.
- Where an Order is cancelled by the Customer, the Customer may incur a cancellation fee or other reasonable costs incurred by FiveOceans due to the cancellation.
- The Customer may request that its Order be varied by providing a request in writing to FiveOceans. Variation will be granted in so far as they can be accommodated by FiveOceans.
- If the Customer wishes to vary its requirements after a Quote has been prepared or after the placement of an Order, FiveOceans 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 FiveOceans 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.
- FiveOceans has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation.
Price, invoicing and payment
- The amount payable in an invoice is as per the Quote and any Additional Charges.
- The Customer must pay for shipping and freight of the Goods.
- The Customer must pay an invoice to FiveOceans within 30 days of a valid tax invoice being issued to the Customer.
- The Customer acknowledges that the price in the Order is not fixed (unless otherwise stated therein) and that there may be factors unknown to FiveOceans at the time the Order is made. Where the price is expected to alter, FiveOceans agrees to notify the Customer as soon as practicable to allow an alternative price to be agreed upon.
- Unless otherwise stated, all prices are GST inclusive and where applicable, the Customer must bear any GST on the Goods. The Customer must pay any custom duties or taxes, or other taxes tax including but not limited to any import tax.
- If any invoice is due but unpaid, FiveOceans may withhold the provision of any further Goods until overdue amounts are paid in full.
- FiveOceans may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to FiveOceans.
- The Customer is not entitled to retain any money owing to FiveOceans notwithstanding any default or alleged default by FiveOceans of these Terms, including (but not limited to) the supply of allegedly faulty or defective Goods, or a delay in the provision of Goods. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
- The Customer is to pay FiveOceans on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to FiveOceans, calculated daily.
- All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of FiveOceans, are to be paid by the Customer as a debt due and payable under the Terms.
- The Customer and FiveOceans agree to comply with their obligations in relation to Goods and Services Tax (“GST”) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
- FiveOceans may require the Customer to pay Additional Charges in respect of costs incurred by FiveOceans as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by FiveOceans in order for it to provide the Goods within the specified time frame (if any).
- The imposition of Additional Charges may also occur as a result of cancellation by the Customer of an Order where cancellation results in Loss of FiveOceans , storage costs for Goods not collected from FiveOceans within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed at the rate set out in the quote, photocopying, communication costs, couriers, packing and handling, Government or council taxes or charges, additional work required by the Customer or any other occurrence which causes FiveOceans to incur costs in respect of the Customer’s Order additional to the quoted cost.
- Where the Order includes delivery of Goods, FiveOceans will deliver the Goods to the address provided for in the Order.
- Where the Customer is not present to accept delivery of the Goods, FiveOceans is entitled to recover reasonable costs incurred in the attempted delivery. If the Customer is not present to take delivery of the Goods on the date agreed, FiveOceans may offer to store the Goods at the Customer’s risk at a price to be reasonably determined by FiveOceans but any inability to take delivery of the Goods does not absolve the Customer from making any payments when they fall due.
Acceptance of Goods
- If the Customer fails to advise and provides evidence to FiveOceans in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
Title and risk
- Risk in Goods passes to the Customer immediately upon delivery or in the event that storage is required under cl 34 of these Terms.
- Property in Goods supplied to the Customer pursuant to these Terms does not pass to the Customer until all money (including money owing in respect of other transactions between FiveOceans and the Customer) due and payable to FiveOceans by the Customer have been fully paid.
- Where Goods are supplied by FiveOceans to the Customer without payment in full of all moneys payable in respect of the Goods, the Customer:
- is a bailee of the Goods until property in them passes to the Customer;
- irrevocably appoints FiveOceans 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 FiveOceans with respect to the Goods under applicable law;
- must be able upon demand by FiveOceans to separate and identify as belonging to FiveOceans Goods supplied by FiveOceans from other Goods which are held by the Customer;
- must not allow any person to have or acquire any security interest in the Goods;
- agrees that FiveOceans may repossess the Goods if payment is not made within 14 days (or such longer time as FiveOceans may, in its complete discretion, approve in writing) of the supply of the Goods; and
- the Customer grants an irrevocable licence to FiveOceans or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this clause. The Customer indemnifies FiveOceans in respect of any damage to property or personal injury which occurs as a result of FiveOceans entering the Customer’s premises.
- Where Goods are supplied by FiveOceans to the Customer without payment in full of all moneys payable in respect of the Goods, and the Customer makes a new object from the Goods, whether finished or not, or the Customer mixes the Goods with other Goods or the Goods become part of other Goods (“new Goods”), the Customer agrees with FiveOceans that the ownership of the new Goods immediately passes to FiveOceans. The Customer will hold the new Goods on trust for FiveOceans until payment of all sums owing to FiveOceans whether under these Terms or any other contract have been made and FiveOceans may require the Customer to store the new Goods in a manner that clearly shows the ownership of FiveOceans.
- For the avoidance of doubt, under cl 39, the ownership of the new Goods passes to FiveOceans at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other Goods.
- Notwithstanding cl 38 the Customer may transfer, sell or dispose of Goods, including new Goods, to a third party in the ordinary course of business provided that:
- where the Customer is paid by a third party in respect of Goods including new Goods, the Customer holds the whole of the proceeds of sale less any GST on trust for FiveOceans – in a separate account – until all amounts owned by the Customer to FiveOceans have been paid; or
- where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to FiveOceans upon FiveOceans giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints FiveOceans as its attorney.
- Where Goods are supplied by FiveOceans to the Customer without payment in full of all moneys payable in respect of the Goods, the Customer acknowledges that FiveOceans has a right to register and perfect a personal property security interest. The Customer agrees to sign any documents and provide all assistance and information to FiveOceans required to facilitate the registration and maintenance of such a personal property security interest.
- The Customer acknowledges and agrees that the suppler may:
- register its interest in any Goods supplied to the Customer but not paid in full under the Personal Property Securities Act 2009 (Cth); and
- give notice to the Customer requiring the Customer to do anything (including amending these Terms or execute any new Terms and conditions) that in FiveOceans’ opinion is necessary, to the maximum possible extent, to enable or that would enable FiveOceans’ security position to be improved without adversely affecting the Customer. The Customer 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 clause, in FiveOceans’ opinion FiveOceans’ security position or obligations under or in connection with these Terms have been or will be materially adversely affected, FiveOceans may by further notice to the Customer cancel these Terms, in which case the Customer must pay to FiveOceans any money owed to FiveOceans by the Customer immediately.
- The Customer undertakes to ensure that FiveOceans’ security position, rights and obligations are not adversely affected by the Personal Property Securities Act 2009(Cth).
Intellectual Property Rights
- The Customer warrants that it owns all intellectual property rights pertaining to its Order for Goods or has a licence to authorise FiveOceans to reproduce or use all copyright works or other materials the subject of intellectual property rights supplied by the Customer to FiveOceans for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified FiveOceans against all Losses incurred by FiveOceans 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 Customer.
- Unless specifically agreed in writing between FiveOceans and the Customer, all intellectual property rights in any works created by FiveOceans on behalf of the Customer vest in and remain the property of FiveOceans.
- Subject to payment of all invoices due in respect of the Goods, FiveOceans grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by FiveOceans in connection with the provision of Goods under these Terms for the purposes contemplated by the Order.
Agency and assignment
- The Customer agrees that FiveOceans may at any time appoint or engage an agent to perform an obligation of FiveOceans arising out of or pursuant to these Terms.
- FiveOceans 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 Terms provided that the assignee agrees to assume any duties and obligations of FiveOceans owed to the Customer under these Terms.
- The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms without the prior written consent of FiveOceans.
Default by Customer
- Each of the following occurrences constitutes an event of default:
- the Customer breaches or is alleged to have breached these Terms for any reason (including, but not limited to, defaulting on any payment due under these Terms) and fails to remedy that breach within 14 days of being given notice by FiveOceans to do so;
- the Customer, being a natural person, commits an act of bankruptcy;
- the Customer, 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 Customer to be wound up, deregistered or dissolved;
- a receiver, receiver and manager or an administrator under Pt 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
- the entering of a scheme of arrangement (other than for the purpose of restructuring); and
- any assignment for the benefit of creditors;
- the Customer purports to assign its rights under these Terms without FiveOceans’ prior written consent; and
- the Customer ceases or threatens to cease conduct of its business in the normal manner.
- Where an event of default occurs, except where payment in full has been received by FiveOceans , FiveOceans may:
- terminate these Terms;
- terminate any or all Orders and credit arrangements (if any) with the Customer;
- refuse to deliver Goods;
- pursuant to cl 38, repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
- retain (where applicable) all money paid on account of Goods or otherwise.
- In addition to any action permitted to be taken by FiveOceans under cl 51, on the occurrence of an event of default all invoices will become immediately due and payable.
Exclusions and limitation of liability
- The Customer expressly agrees that use of the Goods is at the Customer’s risk. To the full extent allowed by law, FiveOceans’ liability for breach of any term implied into these Terms by any law is excluded.
- All information, specifications and samples provided by FiveOceans in relation to the Goods 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 Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
- To the extent permitted by law, FiveOceans and all of its agents will not be liable or responsible in any way to the Customer or any other person for any Loss, damages, costs, expenses or other claims (including consequential damages and Loss of profits or Loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods including in 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:
- any Goods supplied to the Customer;
- any delay in supply of the Goods; or
- any failure to supply the Goods.
- Any advice, recommendation, information, assistance or service given by FiveOceans in relation to Goods and/or services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. FiveOceans does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
- To the fullest extent permissible at law, FiveOceans is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for Loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods or services, whether based on Terms, negligence, strict liability or otherwise, even if FiveOceans has been advised of the possibility of damages.
- Clauses 1(a) and 1(b) are subject to any statutory obligations (including under the Australian Consumer Law).
- The Customer acknowledges that the Goods are not for personal, domestic or household purposes.
- Any rights of the Customer require proof of purchase of the Goods.
Rights and Guarantees
- Where the Customer is a Consumer for the purposes Australian Consumer Law (ACL), Goods are sold with consumer guarantees prescribed by the Competition and Consumer Act (Cth) 2010 and this clause shall apply.
- Where liability for breach of any such consumer guarantee can be limited, FiveOceans’ 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 respective Goods (for the avoidance of doubt, in case of surf board fins, the customer guarantees refer to the fin or fins concerned, not to the whole set of fins.
- FiveOceans’ Goods are made from recycled materials which may contain inconsistencies and imperfections in the look. FiveOceans is rendering all reasonable efforts to provide high quality products, however not all inconsistencies and defects in the material can be avoided.
- The Customer indemnifies and keeps indemnified FiveOceans, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against FiveOceans or, for which FiveOceans is liable, in connection with any Loss arising from or incidental to the Customer’s use (including misuse) of the Goods or , any Order or the subject matter of these Terms including, but not limited to any legal costs incurred by FiveOceans in relation to meeting any claim or demand or any party/party legal casts for which FiveOceans is liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms.
- If a ‘Force Majeure Event’ prevents or hinders FiveOceans from the provision of the Goods, FiveOceans is free from any obligation to provide the Goods while the ‘Force Majeure Event’ continues. FiveOceans may elect to terminate this agreement or keep the agreement on foot until the ‘Force Majeure Event’ has ceased.
- If a ‘Force Majeure Event’ prevents or hinders the Customer from being present at the time of delivery of the Goods, the Customer is free from this obligation while the ‘Force Majeure Event’ continues. The Customer may elect to terminate this agreement or keep the agreement on foot until the ‘Force Majeure Event’ has ceased.
- In these Terms ‘Force Majeure’ means any circumstances beyond control of the party relying on the circumstances include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, terrorism, acts of God, Government decrees, proclamations or Orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
- If a dispute arises between the Customer and FiveOceans , the following procedure applies:
- A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
- 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 clause.
- 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 clause.
- If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
- 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 are operating 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. The Terms of the guidelines are incorporated into these Terms. This clause survives termination of these Terms.
- 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.
- The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
- These Terms are governed by the laws of the state where FiveOceans’ registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state.
- These Terms and any Quotes and written variations agreed to in writing by FiveOceans represent the entire agreement between the parties relating to the subject matter of these Terms.
- These Terms supersede all oral and written negotiations and communications by and on behalf of either of the parties.
- In entering into these Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by FiveOceans or any of its employees or agents relating to or in connection with the subject matter of these Terms.
- If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- All communications from the Customer to FiveOceans must be made in writing, including correspondence by email.
- A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or e-mail before 4pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
- In these Terms:
Additional Charge means:
- fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with FiveOceans’ then current prices; and/or
- expenses incurred by FiveOceans , at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Goods are shipped.
Customer means the person identified on a Quote or Order as the Customer and includes the Customer’s agents and permitted assigns.
Goods means any goods supplied by FiveOceans including but not limited to the surfboard fins from the ‘ecoFin range’.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and FiveOceans’ legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods placed by a Customer in response to a quote, or a request for the supply of Goods, and as varied in writing from time to time by the parties.
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.
Quote means a written description of the Goods to be provided, an estimate of FiveOceans’ charges for the performance of the required work and an estimate of the time frame for the performance of the work.
- In these Terms, unless the context otherwise requires:
- a reference to writing includes email and other communication established through FiveOceans’ website (if any);
- the singular includes the plural and vice versa;
- a reference to a clause is a reference to a clause of these Terms;
- a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- headings are for ease of reference only and do not affect the meaning or interpretation of these Terms;
- if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
- if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
- in all other cases, must be done on the next Business Day.