ORDER FORM
GENERAL TERMS AND CONDITIONS
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By submitting this order you acknowledge that you have read and understood the terms and conditions on this page, and accept them and agree to be bound by them.
1 GENERAL
1.1 All Products and services supplied to the Customer by Rise Products will be supplied upon the following Terms and Conditions.
1.2 No subsequent correspondence or document including any order by the Customer will modify or vary these Terms and Conditions unless that variation is expressly accepted or acknowledged in writing by the Director of Rise Products.
2 DEFINITIONS
In these Terms and Conditions (“Terms”):
2.1 “Consequential Loss” means loss of opportunity, loss of contracts, loss of goodwill, loss of production, loss of income, loss of profit or loss of time.
2.2 ”Customer” means the person acquiring Products as named in the Order.
2.3 “GST” has the meaning it does in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
2.4 ”Order” means the order overleaf or attached to these Terms;
2.5 “Products” means the goods or products described in the Order; and
2.6 “Rise Products” means Rise Products Pty Ltd.
2.7 “Special order” means any Order that Rise Products receives and deems to be a Special Order in writing to the Customer within 14 business days of receipt.
2.8 “Stocked region” means the geographical area serviced by a warehouse that is stocked with Rise Products’ standard range of materials and that is communicated to the Customer.
3 ORDERING AND SUPPLY
3.1 A contract binding on the Customer and Rise Products for the supply of the Products specified in this Order will come into existence on the date that Rise Products accepts this Order. The contract will comprise these Terms and the Order (once accepted by Rise Products) to the exclusion of any other terms and conditions. Each order placed with Rise Products shall constitute a separate contract, and any default by Rise Products in relation to any one contract shall not entitle the Customer to terminate another contract.
3.2 Rise Products shall use all reasonable endeavours to supply the Products to the Customer in accordance with the Order.
3.3 The quantity, quality and description of the Products shall be as set out in the Order. The Customer shall be responsible for ensuring the accuracy of the terms of the Order and for giving Rise Products in a timely manner all necessary information to enable Rise Products to satisfy the Order.
4 PRICE AND PAYMENT
4.1 The price of the Products shall be the quoted price in the Order.
4.2 Unless otherwise agreed by Rise Products and the Customer, all Orders must be paid in full upon the Order being placed by the Customer. The Order will not be dispatched until payment in full and final satisfaction of the amount due and owing is cleared and received by Rise Products.
4.3 Payment of the amount in 4.1 will be in Australian Dollars (AUD) if the Order is placed and delivered within Australia. Otherwise payment of the amount in 4.1 will be in United States Dollars (USD). 4.4 All prices quoted are valid for 30 days or until earlier acceptance by the Customer, after which time they may be altered by Rise Products without notice to the Customer.
4.5 The amounts payable by the Customer to Rise Products for, or in connection with, any supply under the Order is exclusive of GST. The Customer must pay Rise Products an additional amount on account of GST equal to the amounts payable by the Customer for any supply multiplied by the GST rate.
4.6 Subject to clauses 4.4, the Customer:
(i) must pay all Taxes arising out of or in connection with this Contract; and
(ii) indemnifies and holds harmless Rise Projects against any Taxes payable by the Customer arising out of or in connection with the Contract that are discharged or otherwise satisfied by Rise Projects.
4.7 The Customer’s liability to pay all Taxes does not include a liability to pay income tax of Rise Projects.
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4.8 ‘Taxes’ means all forms of taxes, duties, imposts, charges, withholdings, rates, tariffs, levies or other governmental impositions of
whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines,
expenses and other additional statutory charges, incidental or related to the imposition.
4.9 Rise Products is entitled to invoice the Customer for the price of the Products at any time following the Customer’s Order for the Products.
The Customer must pay the invoice for Products in full within 14 days from the date of the invoice being issued.
4.10 If the Customer fails to make any payment by the due date, then, without prejudice to any other right or remedy available to Rise
Products, Rise Products may terminate this contract or suspend any further deliveries to the Customer under this or any other contract
and/or charge the Customer interest on the unpaid amount at the rate of 10% per annum until payment is made in full.
4.11 The Customer shall be liable for, and expressly undertakes to pay, all fees (including an administration fee in an amount to be set from
time to time by Rise Products) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured for
whatever reason.
5 DELIVERY
5.1 The Customer shall be responsible for providing correct delivery details and for making all necessary delivery arrangements.
5.2 Rise Products shall not be liable for any loss or damage, including Consequential Loss, arising from delay in delivery or failure to deliver
the Products, either whole or in part, due to any circumstances beyond its control.
5.3 Rise Products’ obligation to deliver shall be discharged on arrival of the Products at the Customer’s nominated delivery destination or
nominated agent or carrier. If the Customer is unable or unwilling to accept physical delivery of the Products when the Products are ready
for delivery, or delivered, Rise Products shall be entitled to charge a fee determined by Rise Products for any delay suffered, or to arrange
for storage of the Products at the risk and cost of the Customer including all transportation, storage and other consequential costs. A
further 1% administration fee will apply.
5.4 Rise Products reserves the right to charge freight or delivery at a cost to the Customer should delivery not be effected through the fault of
the Customer.
6 DEFECTS
6.1 The Customer shall inspect the Products upon delivery and must, within 24 hours, notify Rise Products of any defects, short deliveries or
a failure to fulfil any order.
6.2 The Customer will, within a reasonable time following delivery, grant Rise Products access to the Products in order to inspect for any
alleged defects and will allow reasonable time for Rise Products to remedy any such defects.
6.3 Should the Customer fail to notify Rise Products within the specified period then the Products shall be deemed to be in compliance with
the order and free from any defect whatsoever, and the Customer agrees that it has no claim, and releases Rise Products from any claim,
in relation to the Products.
7 WARRANTY
7.1 Rise Products warrants that Products supplied shall be of a merchantable quality if used in accordance with the manuals and guidelines.
7.2 Rise Products does not warrant that the Products are fit for a particular purpose and, except or unless otherwise stated therein, warranties
relating to title, defects or conformity of the Products are expressly excluded.
7.3 Any warranty given by Rise Products shall not apply, and Rise Products gives no warranty, to the extent that the Products are not used,
installed or maintained strictly in accordance with the manuals and guidelines or other advice provided from time to time by Rise Products.
7.4 Any costs associated with the return of Products for the purpose of a warranty claim shall be the responsibility of the Customer.
8 RETENTION OF TITLE
8.1 Property in all the Products supplied shall remain vested in Rise Products and shall not pass to the Customer until all monies owing to
Rise Products by the Customer have been paid in full and until such time the Customer will hold the Products as a bailee of Rise Products
and a fiduciary relationship will exist between Rise Products and the Customer.
8.2 The Customer may sell the Products supplied under this agreement in the ordinary course of its business as agent of Rise Products in
any such case as the Customer will account to Rise Products for the proceeds of such sale.
8.3 The Products must be stored separately and in a manner enabling them to be identified and cross referred to particular invoices as the
property of Rise Products, until title has passed to the Customer and further, upon re-sale by the Customer, Rise Products shall have the
right to trace any proceeds of sale to the extent that they relate to its Products which are incorporated into other products or items of the
Customer.
8.4 Rise Products may demand at any time until title has passed to the Customer that the Customer returns the Products or any part of them.
9 PERSONAL PROPERTY SECURITIES ACT (“PPSA”)
9.1 The retention of title arrangement described in clause 8 constitutes the grant of a purchase money security interest by the Customer in
favour of Rise Products in respect of all present and after-acquired goods supplied to the Customer by Rise Products.
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9.2 If Rise Products determines that this Contract (or a transaction in connection with it) is or creates a security interest for the purposes of
the PPSA, the Customer agrees to do all things which Rise Products considers necessary for the purposes of registering its security
interest, including providing consents, signing and producing documents, or supplying information.
10 RISK
10.1 Notwithstanding clauses 8 and 9, the risk in Products purchased shall pass to the Customer upon delivery to the Customer or its agent or
a carrier nominated by the Customer.
10.2 If any of the Products are damaged or destroyed prior to the title in them passing to the Customer, Rise Products is entitled, without
affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Products.
11 CANCELLATIONS AND RETURNS
11.1 Rise Products may cancel the delivery of Products at any time before delivery by giving notice to the Customer by any means.
11.2 Rise Products shall not be liable for any loss or damage, including any Consequential Loss, arising from such cancellation.
11.3 The Customer may cancel the delivery of Products at any time before delivery by giving notice to the Company by any means.
11.4 In the event that the Customer cancels delivery of any Products, the Customer shall be liable for any costs incurred by Rise Products up
to the time of the cancellation including, but not limited to, any re-stocking fees incurred by Rise Products. Special orders and Orders
outside of stocked regions may be delayed and cannot be cancelled within 30 days of the agreed delivery date. Special orders and
orders outside of stocked regions can be warehoused in your region free for up to 30 days, so it is the responsibility of the Customer to
allow up to an additional 30 days to order materials.
11.5 Any special orders or Orders placed outside the stocked region that are cancelled or returned by the Customer will incur a stocking fee of
5% of the total purchase price inclusive of GST.
11.6 Any Products the subject of special orders or Orders placed outside the stocked region that are returned or cancelled, will be subject to a
30 day re-sell period. Any Products the subject of the 30 day re-sell period that is not sold within the 30 days will incur an additional
transfer fee of 10% of the total purchase price inclusive of GST plus other administrative costs including logistic fees, import or export
duties, taxes, cleaning fees and discounted selling costs.
11.7 Any Products returned must be resellable condition including the packaging unopened unless it is faulty. Upon returning the Products, the
Customer must provide photographs for proof of sellable condition before Rise Products accepts the return. Upon accepting the return,
Rise Products will undertake an inspection of the Products which will incur an additional 2% administration and inspection fee charged to
the Customer. The Customer is responsible for bearing any fees and costs associated with the return.
11.8 A conversion or exchange fee of 3% applies for returns outside Australia.
12 INDEMNITY
The Customer shall indemnify Rise Products from and against all and any actions, claims, costs, losses and expenses of any nature incurred by
Rise Products as a result of:
12.1 any negligent act or omission or misconduct of the Customer, its employees, officers or agents in relation to the Order or the Products;
12.2 any breach of these terms or any warranty by the Customer; or
12.3 any misleading or deceptive conduct of the Customer, its employees, officers or agents.
13 LIMITATION OF LIABILITY
13.1 The liability of Rise Products to the Customer for any reason related to the performance of Products under this agreement shall be limited
to the replacement or repair of the Products or the amount paid or payable by the Customer in respect of the particular Products,
whichever is the lesser in value.
13.2 Rise Products excludes the following:
(a) all liability to the Customer in the contract for Consequential Loss or indirect damages, loss of profits, or damages arising from
third party claims; and
(b) all liability to the Customer in negligence for acts or omissions of Rise Products, its employees, agents and contractors arising
out of or in connection with this contract.
14 INTELLECTUAL PROPERTY
14.1 All intellectual property (including without limitation any copyrights, trademarks, and designs) in the Products and any marketing,
promotional or other material used in connection with the sale of the Products by Rise Products remains the property of Rise Products.
15 CONFIDENTIALITY
15.1 In this clause, Confidential Information means any information belonging to a party which that party claims as confidential to itself or which
is determined, or ought to be determined, by the other party (acting reasonably) as being confidential including, without limitation, financial
information, technical information, and other proprietary information. However, Confidential Information does not include information that
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is or becomes known to a party (including information that is or becomes public knowledge), but excluding where such knowledge is as a
result of a breach of confidentiality.
15.2 Each party must keep the Confidential Information of the other party confidential and secure (including in accordance with the other
party’s reasonable directions regarding the Confidential Information) and return the Confidential Information to the other party on
termination of this agreement or otherwise on the reasonable request of the other party.
15.3 Each party may only disclose the Confidential Information to the other party to the extent required for the performance of this agreement
or otherwise with the other party’s consent to the disclosure of the Confidential Information, or to the extent disclosure is required by law.
16 FORCE MAJEURE
16.1 In this clause, Force Majeure means an extraordinary and unforeseeable event beyond the reasonable expectation of this agreement or
control of any party to this agreement including, but not limited to:
(a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped
power;
(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the
order of any government or government authority; and
(e) strikes, blockades, lock out or other industrial disputes.
16.2 If an event of Force Majeure arises, the affected party (Affected Party) must give written notice to the other party as soon as reasonably
practical of:
(a) the nature of the event of Force Majeure; and
(b) each obligation the Affected Party:
(i) is prevented or is likely to be prevented from performing; or
(ii) will be delayed in performing and the anticipated duration of the delay,
and each party shall make all reasonable efforts to minimise the effects of the event of Force Majeure.
16.3 Neither party is responsible or liable for any omission or delay under this agreement as a result of an event of Force Majeure.
17 MISCELLANEOUS
17.1 Any provision of these Terms that is unenforceable will not affect the enforceability of the remaining provisions of these Terms. If any
provision of these Terms is found to be unenforceable as a matter of law, it shall be severed from these Terms.
17.2 A waiver by a party of any of its rights under these Terms must be in writing and does not operate as a waiver of any other right.
17.3 This contract (including the Order and these Terms) constitutes the entire agreement between the parties, and may only be varied by the
parties as agreed in writing.
17.4 Rise Products may terminate this contract at any time in the event it is discovered the Customer has attempted to transfer its outstanding
debts to a new entity that is under the same management as the original.
17.5 To the extent permitted by law, this contract is governed by the laws applicable in Queensland, and the parties submit to the exclusive
jurisdiction of the courts of Queensland in respect of matters arising out of or in connection with this contract.
17.6 Rise Products may at any time at its sole discretion, and without notice to the Customer, assign its rights, liabilities, titles, benefits and
interests under the contract.