TERMS AND CONDITIONS OF SALE OF GOODS
BRiLiANT Polish Pty Ltd (ACN 610 611 160)
1. application of terms and conditions
1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller; and
1.2 These Terms and Conditions shall govern and the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made by the Buyer.
2.1 In these terms and conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Buyer”means the purchaser of goods specified in the relevant Sales Invoice or an individual who buys the product for personal use;
“Contract”means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions.
“Contract Price”means the price stated in the Contract, quotation or offer, as payable for the Goods;
“CCA”means the Competition and Consumer Act 2010;
“Seller”means BRiLiANT Polish Pty Ltd (ACN 610 611 160) with registered office at PO Box 145, EagleHawk Victoria 3356, and includes all employees and agents of BRiLiANT Polish Pty Ltd;
“Goods”means the products specified on a purchase order, online order, Contract or direct sale from the Buyer to the Seller;
“GST”means Goods and Services Tax in Australia as determined in accordance with the GST Act;
“GST Act”means the A New Tax System (Goods and Services) Act 1999;
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.
2.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.4 a Schedule is a a schedule to these Terms and Conditions; and
2.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
2.6 These Terms and Conditions are subject to change at the Seller’s discretion. Such Terms and Conditions will be posted on the Seller’s website and will apply to all Goods ordered by the Buyer from the date of such notice.
3. Basis of Sale
3.1 The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods or has accepted an order placed by the Buyer whichever is the earlier of:
3.2.1 the Seller’s written acceptance;
3.2.2 delivery of the Goods; or
3.2.3 the Seller’s invoice
3.3 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
4. Orders & Specifications
4.1 An order for Goods constitutes an offer to purchase the Goods by the Buyer subject to these Terms and Conditions.
4.2 In placing any order the Buyer expressly represents that the Buyer:
4.2.1 Is solvent; and
4.2.2 Has not committed an act of bankruptcy; and
4.2.3 Knows of no circumstances which would entitle any creditor or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Seller or individual.
4.3 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
4.4 The specification for the Goods shall be that set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in units thereof stated in the Seller’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
4.5 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
4.6 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
4.7 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
5.1 The Contract Price of the Goods shall be the price listed in the Seller’s current price list at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by the Seller and the Buyer.
5.2 The recommended prices are contained in the Seller’s price list and are subject to change at the absolute discretion of the Seller and without notice to the Buyer.
5.3 Where the Seller has quoted a price for the Goods other than in accordance with the Seller’s published price list the price quoted shall be valid for 30 days only or such lesser time as the Seller may specify.
5.4 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.5 The Seller may allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller’s price list for the Goods current at the date of acceptance of the Buyer’s order.
5.6 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are inclusive of the Seller’s charges for packaging.
5.7 All freight will be for the Buyer’s account is excluded from the price of the Goods in the Seller’s price list.
5.8 The Contract Price is exclusive of any applicable value added tax, GST, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods on or at any time after dispatch of the Goods, unless the Goods are to be collected by the Buyer, in which event the Seller shall be entitled to invoice the Buyer for the Contract Price at any time after the Seller has notified the Buyer that the Goods are ready for collection.
6.2 The Buyer shall pay the Contract Price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction, credit or set off) within 5 Business Days of the date of the Seller’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
6.4 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
6.5 For all International Buyers the Seller will only dispatched the goods once full payment has been received.
6.6 Import duties and taxes may be incurred once the Goods reach their destination, for international Buyers. The Buyer is responsible for these charges, and will also be the importer of record and as such should ensure that the purchase is in full compliance with the laws of the country into which the Goods are being imported.
6.7 All credit card payments are subject to a surcharge of 1.5% except American Express which is subject to a surcharge of 3%. All direct deposits will not incur any surcharge. We reserve the right to make changes to this surcharge from time to time or to extend the surcharge to other methods of payment.
6.8 The Seller may make available or send documents and information to the Buyer, including invoices, by means of an electronic communication. The Buyer acknowledges that the Seller is not liable in respect of:
6.8.1 any error, omission or loss of confidentiality arising from an electronic communication;
6.8.2 any unauthorised copying, recording or interference with a document;
6.8.3 any delay or non-delivery of a document; or
6.8.4 any damage caused to your system or files by such electronic transmission (including by any computer virus).
6.9 Should the Buyer fail to pay the Seller’s invoices by the due date then:
6.9.1 The Seller may charge interest on any overdue invoice at the penalty rate fixed under the Penalty Interest Rate Act 1983 (Victoria) calculated and payable daily, compounded from the due date until the invoice is paid in full, and;
6.9.2 The Buyer shall pay all of the Seller’s costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from the Buyer.
7. Goods and Services Tax (‘GST’)
7.1 All prices will be quoted exclusive of GST. However, all goods will be sold on a ‘plus GST (if any)’ basis. Invoices will be issued in the prescribed form as set out by Section 195-1 of the GST Act and the related imposition Acts of the Commonwealth (the GST Law).
7.2 Any discounts or other terms agreed between the Buyer and the Seller will be calculated on and applied to the Purchase Price exclusive of GST.
7.3 Payment for GST:
7.3.1 If GST is imposed on any supply made by the Seller to the Buyer pursuant to these Terms and Conditions (the GST Amount), the Buyer must pay the GST Amount to the Seller, in addition to any amount payable, and any non-cash consideration provided, for that supply (without any deduction or set-off) by the Buyer under any other clause in these Terms and Conditions). Any GST Amount payable is payable upon demand by the Seller whether such demand is by means of any invoice or otherwise.
7.3.2 If any part of the Purchase Price is referable to both a Taxable Supply (as defined in the GST Law) and anything that is not a Taxable Supply, the apportionment of the purchase price between those supplies shall be determined by the Seller, and GST applied accordingly.
7.3.3 If the Seller determines on reasonable grounds that an adjustment is required to the purchase price, it will promptly issue any ‘Adjustment Notes’ that are prescribed by the GST law.
8.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place specified in the Buyer’s order and/or the Seller’s acceptance and/or the Contract as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
8.2 The Seller will deliver Goods ordered to the address supplied on the Buyers order form or to an alternate address that the Seller agrees to in writing. Where the Buyer has provided an incorrect or incomplete delivery address for the Buyers order, the Seller may charge a redelivery fee for each subsequent delivery attempt.
8.3 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
8.4 Dispatch times may vary according to availability and any representations made as to indicative delivery times are limited to Australia and subject to any delays resulting from postal delays or force majeure for which the Seller will not be responsible. The Seller does not accept any liability for loss or damage suffered by the Buyer as a result of any such delays.
8.5 The Buyer may not reject Goods on the basis of partial or late delivery.
8.6 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
8.7 Unless agreed in writing to the contrary, the Seller reserves the right to make part deliveries of any order for the Goods. A failure by the Seller to make delivery of the entire order shall not invalidate the Buyer’s order. If the Seller only delivers part of the Goods which are ordered by the Buyer, the Seller is still entitled to invoice the Buyer for those Goods delivered.
8.8 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licenses, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1, risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8.9 The Buyer shall notify the Seller in writing of any shortages in quantity of any Goods delivered or of any defect in any such Goods within three (3) days of delivery and after that time the Buyer will not be entitled to make any claim on the Seller relating to shortages or defects in quality.
8.10 The Seller reserves the right, irrespective of whether or not an order has been accepted and without notice to the Buyer, to withhold supply to the Buyer and the Seller will not be liable for loss or damage resulting directly or indirectly from such action where:
8.10.1 The Seller has insufficient Goods to fill the order;
8.10.2 The Goods ordered have been discontinued; or
8.10.3 The Seller has determined in the Seller’s absolute discretion that credit should no longer be extended to the Buyer.
9.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
9.2 Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
9.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within 3 Business Days of delivery detailing the alleged damage or shortage.
9.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
9.5 Subject to sub-clauses 9.3 and 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:
10.1.1 in the case of Goods to be delivered at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
10.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises, the time the Goods are dispatched by the Seller, irrespective of when payment is completed.
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
10.3 Notwithstanding Sub-Clause 10.2, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods and any other goods supplied by the Seller and the Buyer has repaid all moneys owed to the Seller, regardless of how such indebtedness arose.
10.4 Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
10.5 The Buyer must, at its own expense, maintain the Goods and insure them for the benefit of the Seller against theft, fire, water and other risks as from the moment of dispatch to the Buyer and until title in the Goods has passed to the Buyer.
10.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.7 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.4.
10.8 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
10.8.1 the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
10.9.2 the Buyer enters into a voluntary arrangement under the Insolvency Law Reform Act 2016 (Cth), or any other scheme or arrangement is made with his creditors;
10.9.3 the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.9.4 the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer of any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
11.1 The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12. Defective Goods
12.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within 3 Business Days of such delivery, the Seller shall at its option:
12.1.1 replace the defective Goods within 7 Business Days of receiving the Buyer’s notice; or
12.1.2 refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as set out above.
12.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.
12.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
12.4 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.5 Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
12.6 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition. Further, it is the Buyer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and the use of the Goods and, where information is supplied to the Buyer on potential hazards relating to the Goods, to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers. Without prejudice to the foregoing, it is also the Buyer’s responsibility to provide safe facilities for the reception of Goods into storage.
12.7 The Buyer shall not, without the Seller’s written consent, alter, remove, or obliterate any labels which the Seller attaches to the Goods.
13. Buyer's Default
13.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
13.1.1 cancel the order or suspend any further deliveries to the Buyer;
13.1.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
13.1.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate determined by the General Interest Charge rate from the Australian Taxation Office, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
13.2 This condition applies if:
13.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
13.2.2 the Buyer becomes subject to an administration order or enters into a voluntary arrangement under the Insolvency Law Reform Act 2016 (Cth) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
13.2.4 the Buyer ceases, or threatens to cease, to carry on business; or
13.2.5 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
13.3 If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14. Limitation of Liability
14.1 Subject to the provisions of Clauses 8 and 12 the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1 any breach of these Terms and Conditions or the Contract;
14.1.2 any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by the CCA) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Terms and Conditions excludes or limits the liability of the Seller:
14.3.1 for death or personal injury caused by the Seller’s negligence;
14.3.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
14.3.3 for fraud or fraudulent misrepresentation.
14.4 Subject to sub-Clauses 14.2 and 14.3:
14.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
14.4.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
14.5 The Buyer expressly acknowledges and agrees that it has not relied upon, and the Seller is not liable for any representations or advice given by the Seller, its servants, agents, representatives or employees in relation to the suitability for any purposes of the Goods.
14.6 The Buyer shall indemnify and keep indemnified and hold the Seller harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Seller, and from and against all actions, proceedings, claims or demands made against the Seller, arising from one or more of the following:
14.6.1 As a result of the Buyer’s failure to comply with any laws, rules, standards or regulations applicable in relation to the Goods or the use of the Goods;
14.6.2 As a result of any other negligence or other breach of duty by the Buyer; or
14.6.3 As a result of any compliance or adherence by the Seller with any instructions of the Buyer in relation to the Goods or their manner of fabrication.
15. Confidentiality, Publications and Endorsements
15.1 The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default.
15.2 The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
15.3 The Buyer will use all reasonable endeavours to ensure compliance with this Clause 15 by its employees, servants and agents.
15.4 The provisions of this Clause 15 shall survive the termination of the Contract.
16. Intellectual Property Rights
The Buyer warrants that any design or instruction furnished to the Seller shall not be such as will cause the Seller to infringe any intellectual property rights (including patents, registered designs, trademarks, copyright, confidential information and the like) in the execution of the Buyer’s order and the Buyer agrees to indemnify the Seller against any infringement or unauthorised use of the intellectual property rights arising out of the manufacture or use of the Goods and it is especially agreed that the sale and purchase of Goods does not confer on the Buyer any licence or rights under any intellectual property rights which is the property of the Seller including, but not limited to, copyright or trademarks). Buyer acknowledges and agrees that Seller and/or its affiliates are the sole and exclusive owners of all trademarks, trade dress and trade names used by the Seller and its affiliates in connection with the Goods and any local language variants thereof (the “Trademarks”). Any use of the Trademarks by Buyer shall be made only with the Seller’s prior written approval and solely in connection with the advertising, promoting or selling of the Goods and any such use shall inure to the benefit of Seller and/or its affiliates. In no event shall Buyer or its affiliates file any application to register a trademark or a domain name or use any trademark, domain name, business name or trade style that incorporates or is confusingly similar to any of the Trademarks. If Buyer files any application of any kind that incorporates or is confusingly similar to any Trademark, it shall immediately transfer such application or any rights derived therefrom to Seller or an affiliate as designated by Seller.
17.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
17.2 Notices shall be deemed to have been duly given:
17.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
17.2.2 when sent, if transmitted by e-mail and a return receipt is generated; or
17.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
17.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
17.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address notified to the other Party.
18.1Any notice to be given by the Buyer to the Seller must be in writing and shall be sent to the Seller’s address which is, until notified otherwise, as follows:
BRiLiANT Polish Pty Ltd
PO Box 145
Eaglehawk VIC 3556
18.2 No notice shall be deemed to have been given until it is actually received at such address.
It is agreed that if any provision of these Terms and Conditions should be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof and each such other provision shall remain in full force and effect.
20. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria. The Buyer and the Seller agree to submit to the non-exclusive jurisdiction of Victoria and the Federal Court of Australia.
21. Entire Agreement
These Terms and Conditions contain all the terms of the agreement between the parties and supersede all prior discussions and arrangements. In the event that there is any conflict between the provisions of these Terms and Conditions and the provisions of a Purchase Order or any record of any other agreement that the Seller may have with the Buyer, then the provisions of these Terms and Conditions shall prevail.
22. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.