In these Terms and Conditions:
(a) “Customer” means the person, firm or company ordering or buying the Goods from Sea to Summit;
(b) “Event of Default” means any one or more of the following:
(i) a material breach of any of the terms and conditions set out herein including the non-payment of any money payable to Sea to Summit;
(ii) the Customer becomes, threatens to become or is in jeopardy of becoming insolvent;
(iii) an application is made to a court to wind up the Customer;
(iv) a receiver or administrator is appointed to manage the affairs of the Customer;
(v) the Customer becomes, threatens to become or is in jeopardy of becoming bankrupt;
(vi) the Customer has any of its assets seized by the holder of a security interest;
(vii) the Customer ceased its business or is unable to operate or continue operating its business;
(viii) the Customer is unable to pay its debts when due;
(c) “Goods” means goods supplied by Sea to Summit to the Customer including goods bearing the “Sea to Summit” brand and goods of other brands distributed by Sea to Summit where the brand of such goods are identified in the invoices produced by Sea to Summit;
(d) “GST” has the same meaning as in the GST Law;
(e) “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 and any amendments made thereto;
(f) “PPSA” means the Personal Property Securities Act 2009 and any amendments made thereto;
(g) “Sea to Summit” means Sea to Summit Pty Ltd (ACN 053 533 921).
2. Binding Terms and Conditions
These Terms and Conditions, subject to any variations agreed between the parties and made in writing, apply to the supply of all Goods specified in the invoice to the Customer. By ordering the Goods from Sea to Summit the Customer agrees to be bound by these Terms and Conditions. These Terms and Conditions may be amended from time to time. The updated Terms and Conditions are available from www.stsdistributedbrands.com.au under the heading “Terms and Conditions”. The Customer agrees to check that site from time to time and acknowledges and agrees that it has been made aware of such updates and agrees to be bound by them.
3. Credit Inquiries
The Customer authorises Sea to Summit, its authorised agents or representatives to make inquiries as to the credit and financial history and responsibilities of the Customer, as required by Sea to Summit from time to time. The Customer agrees to give any consent required to enable Sea to Summit to undertake any such inquiries, including obtaining reports from credit reporting bodies as to the consumer and/or commercial creditworthiness of the Customer and or its representatives or guarantors (as applicable). Any credit terms granted to the Customer is on the condition that the Customer has made complete and accurate disclosure to Sea to Summit in its credit application of all material information relevant to Sea to Summit’s decision to extend credit. The Customer must promptly inform Sea to Summit of any material adverse change in Customer’s financial or business circumstances.
4. Terms of Payment
(a) The Customer will pay Sea to Summit’s invoice in cleared funds within 30 days of the date of the invoice. A failure to comply with these payment terms is deemed to be a material breach of these Terms and Conditions by the Customer.
(b) Payment of the invoice and any other monies payable by the Customer to Sea to Summit must be without deduction, withholding, set-off or counterclaim.
(c) Payment other than by way of cleared funds is not made until the payment is honoured in full.
(a) Terms defined in the GST Law have the same meaning in this clause5 unless the context otherwise requires.
(b) Unless stated otherwise in writing, GST is payable by the Customer. The Customer must make payment of the GST amount to Sea to Summit at the same time and in the same manner as it pays the invoice (either in part or in full) on or before the due date for payment.
(c) If there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the GST shown on the invoice, Sea to Summit will issue an adjustment note to the Customer, and:
(i) may recover from the Customer, by giving 7 days written notice, the amount by which the GST on the supply exceeds the GST amount; or
(ii) must refund to the Customer, within 7 days of becoming aware of the adjustment event, the amount by which the GST amount exceeds the amount of the GST on the supply.
6. Event of Default
If the Customer defaults in payment of any of Sea to Summit’s invoices or an Event of Default occurs:
(a) all monies owed by the Customer to Sea to Summit will immediately become due and payable;
(b) any further orders requested by the Customer will be supplied at Sea to Summit’s discretion and may include a requirement for pre-payment;
(c) without limiting Sea to Summit’s other rights at law or in equity, Sea to Summit is entitled to calculate and charge interest at a rate of 18% per annum calculated daily;
(d) the Customer will pay Sea to Summit’s costs and expenses in relation to any actual or contemplated enforcement of these Terms and Conditions including all collection costs (including legal fees), charges, commissions, fees and disbursements incurred by Sea to Summit in the recovery of any unpaid account, including charges for dishonoured cheques received;
(e) Sea to Summit can enforce its security interest in any collateral including the Goods by exercising all or any of its rights under any security interest, including any security interest registered in accordance with clause 11 of these Terms and Conditions;
(f) Sea to Summit may in its absolute discretion, enforce any of its rights at law without notice to the Customer; and
(g) Sea to Summit may in its absolute discretion terminate its business relationship and any contract or agreement made with the Customer and cease supplying Goods to the Customer provided that such termination is given in writing. The termination pursuant to this clause 6.(g) will be effective immediately unless otherwise stated in the termination notice.
7. Risk and Title
(a) The risk in the Goods passes to the Customer on delivery of goods at the Customer’s premises or to the Customer’s control (including control by any of the Customer’s employees, agents and representatives).
(b) Title in the Goods supplied by Sea to Summit to the Customer does not pass to the Customer until the Customer has paid all monies due and outstanding to Sea to Summit on any account whatsoever.
(c) Where there is more than one unpaid invoice or where an invoice relates to the supply of more than one type of Good, if the Customer has made a payment then irrespective of how the Customer has referenced the payment (whether it be to a specific invoice, date or otherwise), the payment must be treated as having been made first in respect of goods which have passed out of the possession of the Customer and then in respect of whatever goods, still in possession of the Customer, as Sea to Summit elects.
(d) Until such time that title in the Goods passes to the Customer, the Customer:
(i) holds the Goods as bailee and fiduciary for Sea to Summit;
(ii) must on demand by Sea to Summit be able to separate and identify as belonging to Sea to Summit, the Goods supplied by Sea to Summit from other goods which are held by the Customer;
(iii) must not allow any person or entity to have or acquire any security interest in the Goods;
(iv) agrees that Sea to Summit may collect and retake possession of any Goods supplied (whether they relate to an unpaid debt or not) if an Event of Default occurs. The Customer grants to Sea to Summit and its officers and agents an irrevocable licence to enter any premises occupied or controlled by the Customer where the Goods are held and remove those Goods without notice to, or consent from, the Customer. The Customer indemnifies Sea to Summit for any damage to property or personal injury which occurs as a result of Sea to Summit entering the Customer’s premises;
(v) must store the Goods separate from its own goods and those of any other third party in such a way as to clearly indicate at all times that the Goods are owned by Sea to Summit;
(vi) must ensure that at all times the Goods are properly stored, protected, readily identifiable and insured; and
(vii) must not make new goods from the Goods or mix the Goods with other goods.
(e) The Customer may sell or deal in the ordinary course of business with the Goods provided that:
(i) any such sale or dealing is at arms length and on market terms; and
(ii) the Customer holds the proceeds of any sale of or dealing in the Goods on trust for Sea to Summit in a separate identifiable account as the beneficial property of Sea to Summit and the Customer must pay such amount to Sea to Summit on demand. If the Customer does not hold the proceeds in a separate identifiable account then the Customer remains liable to immediately pay the proceeds of any sale of or dealing in the Goods to Sea to Summit.
(f) In the event of a breach of these Terms and Conditions by the Customer including, without limitation, default in payment, the Customer must return the Goods to Sea to Summit immediately on demand. If the Customer does not return the Goods to Sea to Summit on demand, Sea to Summit will be entitled (without further notice) to enter upon any premises of or occupied by the Customer at any time to do all things necessary to recover the Goods.
(a) The Customer must inspect the Goods upon delivery and if the Customer believes the Goods are damaged, incorrect or otherwise not in accordance with these Terms and Conditions or the Customer’s order/instructions, the Customer must give written notice to Sea to Summit setting out full particulars and evidence of the Customer’s claims, within seven (7) days of delivery of the Goods.
(b) If Sea to Summit does not receive that written notice from the Customer with the specified seven (7) days, the Customer is deemed to have accepted the Goods and the Customer waives and abandons any claim against Sea to Summit in respect of or in connection with, the Goods.
Unless requested by the Customer and confirmed in writing from Sea to Summit, insurance for the Goods in transit will not be arranged by Sea to Summit. Instructions for insurance cover will only be accepted in writing at the time the Goods are ordered.
10. Limitation of Liability
(a) Subject to any responsibilities implied by law and which cannot be excluded, Sea to Summit will not be under any liability (contractual, tortious or otherwise) to the Customer in respect of any damage, loss or personal injury (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of the Goods, failure or omission of Sea to Summit.
(b) Sea to Summit’s maximum liability to the Customer for breach of contract, statute or otherwise is limited to the replacement or repair of the defective Goods together with transportation costs.
(c) The Customer indemnifies and keeps Sea to Summit fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
(d) To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Sea to Summit will be subject to correction without any liability on the part of Sea to Summit.
11. Personal Property Securities Act 2009 (“PPSA”)
(a) If a term in this clause or elsewhere in these Terms and Conditions has a particular meaning in the PPSA, it has the same meaning in these Terms and Conditions.
(b) In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to it by the PPSA.
(c) The Customer acknowledges and agrees that these Terms and Conditions constitute a security agreement for the purposes of the PPSA. The Customer grants to Sea to Summit a security interest in:
(i) all Goods supplied and that will be supplied in the future by Sea to Summit to the Customer on retention of title terms; and
(ii) the proceeds of sale of the Goods supplied on retention of title terms by Sea to Summit to the Customer.
The security interest is a purchase money security interest to the extent to which it secures payment of the aggregate unpaid invoices payable to Sea to Summit for the Goods.
(d) The Customer acknowledges and agrees to act immediately when requested by Sea to Summit to do all things necessary and provide such information as Sea to Summit considers necessary or desirable to enable Sea to Summit to perfect any security interest created or provided by these provisions in the goods or any proceeds. The Customer must promptly do anything that Sea to Summit requires to ensure that its security interests are perfected security interests and have priority over all other security interests.
(e) The Customer and Sea to Summit agree that the Supply need not comply with the following provisions of the PPSA:
(i) to the extent that s115(1) of the PPSA allows them to be excluded, sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138(B)(4), 142 and 143;
(ii) to the extent that s115(7) of the PPSA allows them to be excluded, sections: 127, 129(2), 132, 134(1), 135 and 137.
(f) The Customer waives it right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any security interest.
(g) Subject to these Terms and Conditions, the parties agree that any costs for Sea to Summit’s compliance with the PPSA will form part of any debt owed to by the Customer.
12. Intellectual Property
(a) Where Sea to Summit has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Sea to Summit. Under no circumstances may such designs, drawings and documents be used without the express written approval of Sea to Summit.
(b) Sea to Summit may from time to time provide the Customer pictures and/or text to use in the promotion of the Goods (hereafter the “Copyright Materials”). The licence granted by Sea to Summit to the Customer in respect of the Copyright Materials is strictly limited to the right to reproduce the Copyright Materials for use in promoting or advertising the associated Goods in Australia only. No licence is given to adapt or modify the Copyright Materials and the licence does not extend to any areas outside of Australia. A breach of this clause is a material breach of these Terms and Conditions.
If any provision of these Terms and Conditions is or becomes invalid or unenforceable then if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.
14. No Reliance
The Customer acknowledges that the Customer has not relied on any oral statements, representations, undertakings, covenants or agreements in relation to the subject matter of Goods on the invoice or these Terms and Conditions.
15. Continuing Obligations
Unless otherwise stated, each indemnity, reimbursement or similar obligation in this Deed:
(a) is of a continuing nature and is independent of each other obligation; and
(b) survives termination or discharge of this Deed.
16. Cumulative Rights
The rights, powers and remedies provided to Sea to Summit in these Terms and Conditions are in addition to and do not exclude or limit, any right, power or remedy provided by law.
18. No Waiver
The failure or delay in exercising any right, power or remedy under these Terms and Conditions by Sea to Summit does not operate as a waiver of that right, power or remedy nor does any single or partial exercise of any right, power or remedy preclude any other or further exercise of any other right, power or remedy.
These Terms and Conditions are governed by the law applicable in Western Australia and each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts of Perth, Western Australia.