Invoice Terms and Conditions
1. Binding Terms and Conditions
These Terms and Conditions 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. The Customer agrees to check that site from time to time and acknowledges that any updates to the Terms and Conditions will become effective from the date the Customer next makes an order.
2. Ascent Program
2.1 The Customer may be invited to participate in Sea to Summit’s Ascent Program from time to time, in accordance with the applicable terms and conditions which will be separately provided to the Customer.
2.2 The Customer’s participation in the Ascent Program will be deemed acceptance of those applicable terms and conditions.
3. Credit Inquiries
The Customer authorises Sea to Summit and 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 are 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 and otherwise comply with the terms and conditions set out in the credit application.
4. Terms of Payment
4.1 The price for the Goods sold under these Terms and Conditions shall be the applicable price for the Goods notified by Sea to Summit at the time the Customer places a Purchase Order. The Customer may be charged a credit card surcharge if it pays via credit card. The Customer may be charged an administration fee if the Customer places an order below the minimum order value notified by Sea to Summit to the Customer from time to time.
4.2 The Customer may be entitled to certain discounts, bonuses or incentives from time to time, in accordance with the Ascent Program, which, if applicable, will be notified to the Customer separately.
4.3 Unless otherwise agreed between the parties, the Customer will pay Sea to Summit’s invoice in cleared funds within 30 days of the date of the invoice, except for any amounts disputed in good faith provided that the Customer must pay all undisputed amounts of an invoice. A failure to comply with these payment terms is deemed to be a material breach of these Terms and Conditions by the Customer.
4.4 Except as otherwise provided in these Terms and Conditions, all consideration payable under this Agreement in relation to any supply is exclusive of GST.
5. GST
5.1 Terms defined in the GST Law have the same meaning in this clause 5 unless the context otherwise requires.
5.2 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.
5.3 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:
5.3.1 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
5.3.2 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
6.1 If the Customer defaults in payment of any of Sea to Summit’s invoices or an Event of Default occurs:
6.1.1 all monies owed by the Customer to Sea to Summit will immediately become due and payable;
6.1.2 any further orders requested by the Customer will be supplied at Sea to Summit’s discretion and may include a requirement for pre-payment;
6.1.3 without limiting Sea to Summit’s other rights at law or in equity, Sea to Summit is entitled to charge interest on all amounts owing by the Customer on a daily basis at a rate equivalent to the then applicable Commonwealth Bank ‘Corporate Overdraft Reference Rate’, which accumulates from the date on which payment was due;
6.1.4 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 10 of these Terms and Conditions;
6.1.5 Sea to Summit may in its absolute discretion, enforce any of its rights at law without notice to the Customer; and
6.1.6 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 6.1.6 will be effective immediately unless otherwise stated in the termination notice.
7. Risk and Title
7.1 Sea to Summit will use reasonable endeavours to comply with any delivery times set out in an accepted Purchase Order, and with the Delivery Terms.
7.2 In the event that the Customer is unable to take delivery of the Goods as arranged, then Sea to Summit may charge a reasonable fee for redelivery and/or storage, reflective of the actual costs incurred by Sea to Summit.
7.3 The Customer must inspect the Goods and notify Sea to Summit of any defects, damage or inconsistencies with the Purchase Order within 7 days of receiving the delivery, failing which the Customer is deemed to have accepted the Goods. On notification by the Customer, and provided Sea to Summit determines that the Goods are in fact defective, damaged or inconsistent (and not as a result of the Customer’s act or omission), Sea to Summit will either deliver replacement Goods at its own cost, or will refund the price paid by the Customer for the defective or damaged Goods.
7.4 Notwithstanding the above clauses, Sea to Summit will not be liable for or required to accept any return for any defect or damage where such defect or damage is caused or contributed to by:
7.4.1 the Customer’s acts or omissions, including the Customer’s failure to take reasonable steps to prevent them from becoming defective or damaged or the Customer failing to follow Sea to Summit’s instructions;
7.4.2 Sea to Summit following any instructions supplied by the Customer in relation to delivery;
7.4.3 the Customer altering or repairing the Goods without Sea to Summit’s written consent; or
7.4.4 any accident or circumstance outside Sea to Summit’s reasonable control.
7.5 Risk in the Goods passes from Sea to Summit to the Customer in accordance with the Delivery Terms.
7.6 Title in the Goods does not pass to the Customer until the Customer has paid the price for the Goods to Sea to Summit.
7.7 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.
7.8 Until such time that title in the Goods passes to the Customer, the Customer:
7.8.1 holds the Goods as bailee and fiduciary for Sea to Summit;
7.8.2 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;
7.8.3 must not allow any person or entity to have or acquire any security interest in the Goods;
7.8.4 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;
7.8.5 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;
7.8.6 must ensure that at all times the Goods are properly stored, protected, readily identifiable and insured; and
7.8.7 must not make new goods from the Goods or mix the Goods with other goods.
7.9 The Customer acknowledges and agrees that:
7.9.1 it may only sell the Goods via the retail channels which have been approved in writing by Sea to Summit; and
7.9.2 it must not sell the Goods to any entity or person who the Customer knows or should know, has the intention of on-selling the Goods, unless otherwise agreed in writing by Sea to Summit.
7.10 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, to the extent permitted by law, Sea to Summit may (without further notice) enter any premises of or occupied by the Customer at any time to do all things necessary to recover the Goods.
8. Insurance
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.
9. Limitation of Liability
9.1 To the maximum extent permitted by law:
9.1.1 Sea to Summit’s repair or replacement of the Goods under clause 7.3 is the limit of Sea to Summit’s liability to the Customer; and
9.1.2 Sea to Summit is not liable to the Customer for more than the price paid by the Customer for the Goods.
9.2 The Customer indemnifies Sea to Summit for all costs incurred by Sea to Summit in connection with the Customer’s breach of these Terms and Conditions or its negligent act or omission.
9.3 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.
10. Personal Property Securities Act 2009 (PPSA)
10.1 To the extent that any agreement between Sea to Summit and the Customer constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA), the Customer agrees:
10.1.1 to do such things as Sea to Summit may require from time to time to ensure that any security is perfected under the PPSA;
10.1.2 that the Customer will reimburse Sea to Summit for all expenses incurred by Sea to Summit in enforcing our security interest;
10.1.3 for the purposes of sections 115(1) and 115(7) of the PPSA, nothing in sections 125, 132(3)(d), 132(4), 142 and 143 of the PPSA of the PPSA shall apply to these Terms and Conditions, or the security under these Terms and Conditions and to the extent permitted by the PPSA, the Customer waives its rights in respect of these Terms and Conditions, or the security under this agreement, to receive any notice or statement under the following sections of the PPSA:
(a) 95 (notice of removal of an accession); 118 (notice of decision to enforce security interest under land law); 121(4) (enforcement of liquid assets – notice to grantor); 123 (notice of seizure of collateral); 130 (notice of disposal of collateral); 132(3)(d) (statement of account following a disposal showing the amounts paid to other secured parties); 132(4) (statement of account if there is no disposal); 135 (notice of retention of collateral); 57 (notice in relation to registration events); and
(b) all sections in Part 4.3 (other than those in Division 6 of Part 4.3);
10.1.4 no party may disclose information of the kind referred to in section 275(1) of the PPSA (except where required under section 275(7) of the PPSA) and the parties agree not to authorise the disclosure of such information at any time.
11. Intellectual Property
11.1 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.
11.2 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.
12. Severability
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.
13. 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.
14. Continuing Obligations
14.1 Unless otherwise stated, each indemnity, reimbursement or similar obligation in these Terms and Conditions:
14.1.1 is of a continuing nature and is independent of each other obligation; and
14.1.2 survives termination or discharge of the Terms and Conditions.
15. 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.
16. Privacy Policy
If the Customer provides or has provided personal information to Sea to Summit then Sea to Summit’s Privacy Policy applies and may be accessed from: www.stsdistributedbrands.com.au/pages/privacy-policy
17. 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.
18. Force Majeure
If performance of any obligation under this Agreement is prevented by reason of a Force Majeure Event, then that party will not be liable for failure in performance of this Agreement to the extent performance is prevented and the time for performance will be extended accordingly.
19. General and Interpretation
19.1 The Customer must not assign, transfer or otherwise deal with its rights under these Terms and Conditions without Sea to Summit’s prior written consent.
19.2 These Terms and Conditions are governed by Western Australian law, and the parties submit to the non-exclusive jurisdiction of the courts applying in that place.
19.3 In the interpretation of these Terms and Conditions:
19.3.1 words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa;
19.3.2 grammatical forms of defined words or phrases have corresponding meanings;
19.3.3 a reference to an amount of money is a reference to Australian dollars (AUD);
19.3.4 if a party consists of more than one person or body corporate, these Terms and Conditions binds them jointly and each of them severally; and
19.3.5 if the day on or by which anything is to be done not a business day, then it must be done on the next business day.
20. Definitions
In these Terms and Conditions:
Ascent Program means Sea to Summit’s bonus or incentive program which is offered to retailers from time to time in accordance with the applicable terms and conditions;
Customer means the person, firm or company ordering or buying the Goods from Sea to Summit;
Delivery Terms means the shipping and delivery terms set out in each Purchase Order for Goods.
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;
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;
GST has the same meaning as in the GST Law;
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 and any amendments made thereto;
PPSA means the Personal Property Securities Act 2009 and any amendments made thereto;
Purchase Order means any order for the purchase of Goods, placed by the Customer with Sea to Summit from time to time;
Sea to Summit means Sea to Summit Pty Ltd (ACN 053 533 921).