TERMS AND CONDITIONS OF SUPPLY OF GOODS BY CREA8 MANAGEMENT PTY LTD TO THE CUSTOMER
These terms and conditions (‘Terms’) apply whenever Crea8 Management PTY LTD ABN 27 613 784 704 (‘CREA8 MANAGEMENT PTY LTD’) supplies any
products (‘Goods’) to any person (‘the customer’), unless expressly agreed otherwise in writing. By requesting the supply of Goods from
CREA8 MANAGEMENT PTY LTD, the customer acknowledges and agrees to the Terms.
CREA8 MANAGEMENT PTY LTD may at any time amend these terms or the list price upon notice to the customer. An amendment will not affect any order accepted
by CREA8 MANAGEMENT PTY LTD on or prior to the time that the terms were notified to the customer (which may be by way of update via CREA8 MANAGEMENT PTY LTD’s website or
such other means as CREA8 MANAGEMENT PTY LTD considers is appropriate). The customer’s placement of any order after receipt of such notice will constitute
deemed acceptance by the customer of the amended terms.
1. SALE AND PURCHASE
1.1. CREA8 MANAGEMENT PTY LTD agrees to sell and the customer agrees to purchase the Goods referred to on a purchase order issued by the customer and
accepted by CREA8 MANAGEMENT PTY LTD.
1.2. The customer cannot cancel any purchase order for Goods after issue and is bound to pay the price for those Goods, unless CREA8 MANAGEMENT PTY LTD
expressly agrees otherwise in writing.
2. PAYMENT
2.1. Payment for the Goods is due in full, without deduction, withholding or set-off of any kind, twenty days from the date of the
statement issued by CREA8 MANAGEMENT PTY LTD. Payment by Credit or Charge Card will be accepted provided arrangement has been made to do so prior
to purchase. Credit or Charge Cards may not be used to pay accounts that are overdue unless the customer agrees to pay the
merchant fees applicable.
2.2. Interest may be charged on amounts that are overdue from the due date for payment until payment in full and will be calculated at
the Commonwealth Bank overdraft index rate ruling at the time.
3. PRICING
3.1. Unless otherwise agreed in writing, the price charged shall be the list price at the time of placing the order. Verbal quotations are
not binding on CREA8 MANAGEMENT PTY LTD unless confirmed in writing. Written quotations are only valid for one calendar month unless otherwise
stated. CREA8 MANAGEMENT PTY LTD may vary its prices at any time.
4. GST
4.1. ln this clause 4:
(i) the expressions Consideration, lnput Tax Credit, Recipient, Supply, Tax lnvoice and Taxable Supply have the meanings given to
those expressions in the GST Act; and
(ii) Supplier means any party treated by the GST Act as making a Supply under a Contract.
4.2. Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with
these Terms are exclusive of GST.
4.3. lf GST is imposed on any Supply made under or in accordance with these Terms, the Recipient of the Taxable Supply must pay to the
Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax
lnvoice in respect of the Supply.
4.4. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply required
to be made in accordance with these Terms.
5. WARRANTY
Except as set out in these Terms or otherwise expressly agreed in writing, all conditions, representations, warranties, terms and
undertakings, whether express or implied, are excluded to the maximum extent permitted by law. Nothing in these Terms excludes,
restricts or modifies any rights that customers may have under the Australian Consumer Law or any other rights and which by law
cannot be excluded.
6. RETURNS
6.1. This Clause 6 does not apply to goods purchased by customers who are consumers within the meaning of the Australian Consumer
Law and where the return is made because the goods do not comply with the consumer guarantees under the Australian Consumer
Law.
6.2. If the customer wishes to return the Goods, the customer must request a Returned Goods Authorisation (RGA). The customer may
only return the goods upon receiving an RGA number for CREA8 MANAGEMENT PTY LTD.. When requesting an RGA, the original invoice number is required
to be quoted. All returned goods must be properly packed, clearly labelled with the RGA number, and returned via CREA8 MANAGEMENT PTY LTD’s
nominated means.
6.3. To the extent permitted by law, returns will not be accepted if:
(a) the Goods were delivered more than 24 hours prior to the request for return;
(b) the Goods are returned incomplete, or have been used;
(c) the Goods are received by CREA8 MANAGEMENT PTY LTD in a damaged or unsaleable condition, or are not in their original unopened packaging;
(d) the Goods were not stored and/or shipped back to CREA8 MANAGEMENT PTY LTD in accordance with the manufacturer’s or CREA8 MANAGEMENT PTY LTD’s recommendations;
(e) the Goods are not normal CREA8 MANAGEMENT PTY LTD stock items and have been procured by CREA8 MANAGEMENT PTY LTD to meet a specific customer requirement;
(f) the Goods are not returned to CREA8 MANAGEMENT PTY LTD’s nominated warehouse;
(g) the Goods have expired; or
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Crea8 Management PTY LTD Pty Ltd Terms and Conditions September 2017
(h) the Goods are cold chain category products.
6.4. If it is determined that the customer was not entitled to return the Goods (for example, clause 6.2 applied in respect of the Goods),
CREA8 MANAGEMENT PTY LTD may charge a re-stocking fee (minimum $30) together with any other charges (including freight) incurred by CREA8 MANAGEMENT PTY LTD in
connection with such return. If a handling fee was charged at the time of the purchase of the Goods, the customer will not be
entitled to a refund or credit of that handling fee.
7. DELIVERY AND RISK
7.1 The risk in the Goods shall pass to the customer immediately upon delivery or, where the customer is to arrange delivery, when the
Goods are made available for collection by the customer or its carrier.
7.2 Any time stated for delivery is an estimate only. CREA8 MANAGEMENT PTY LTD is not liable for any delay in delivery (howsoever caused), nor for any failure
to deliver caused by the customer’s failure to provide CREA8 MANAGEMENT PTY LTD with adequate delivery instructions or any other instructions relevant
to the supply of the goods. Any such delay or failure does not give the customer a right to reject the goods. This sub-clause 7.2 is
subject to any rights the customer may have under the Australian Consumer Law.
8. TITLE
8.1 The property in Goods shall not pass from CREA8 MANAGEMENT PTY LTD until the customer’s indebtedness to CREA8 MANAGEMENT PTY LTD pursuant to any invoices from CREA8 MANAGEMENT PTY LTD
to the customer in relation to those Goods is paid in full. Until such payment in full is made the customer shall keep the Goods for
and on behalf of CREA8 MANAGEMENT PTY LTD in its capacity as a fiduciary and subject to these terms. CREA8 MANAGEMENT PTY LTD authorises the customer to sell or use the
Goods, in the ordinary course of the customer’s business, as CREA8 MANAGEMENT PTY LTD’s fiduciary agent for the account of CREA8 MANAGEMENT PTY LTD only. The proceeds of
sale are the property of CREA8 MANAGEMENT PTY LTD and the customer shall hold such proceeds for and on behalf of CREA8 MANAGEMENT PTY LTD in a fiduciary capacity. The
customer shall pay such proceeds of sale into a separate account for and on behalf of CREA8 MANAGEMENT PTY LTD and shall keep separate records as to
the Goods sold and as to the amounts received. This authority to sell and use the Goods is revoked immediately if a customer
default occurs (as described below) or if CREA8 MANAGEMENT PTY LTD revokes that authority in writing.
8.2 The customer shall ensure that the Goods are stored in such a way that they do not become spoilt or damaged, are clearly
identifiable as the property of CREA8 MANAGEMENT PTY LTD and are not intermingled with the property of the customer or of any other person. The
customer shall not in any way alter or treat the Goods so as to change the quality or nature in any way so that they can not be
distinguished until such time as full payment has been made as aforesaid. The customer shall notify CREA8 MANAGEMENT PTY LTD in writing of any
intended sale of the customer’s business, which includes or purports to include the Goods as part of the customer’s property. Until
payment to CREA8 MANAGEMENT PTY LTD in full, the customer shall grant any security interest over, lease, assign or otherwise deal with the Goods, except
as permitted by these Terms or with the written consent of CREA8 MANAGEMENT PTY LTD.
9. PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
The customer acknowledges that these Terms constitute a security agreement which creates a security interest under the Personal
Property Securities Act 2009 (Cth) (‘PPSA’) in favour of CREA8 MANAGEMENT PTY LTD in all Goods and their proceeds supplied by CREA8 MANAGEMENT PTY LTD to the customer at
any time to secure the payment of all amounts, and the performance of all obligations, owing by the customer to CREA8 MANAGEMENT PTY LTD in
connection with any such Goods. The customer agrees, at its cost, to provide such information, sign such documents and do such
other things as CREA8 MANAGEMENT PTY LTD may require in order to enable CREA8 MANAGEMENT PTY LTD to register and perfect that security interest and obtain and maintain a
first ranking priority position over the Goods and their proceeds. To the maximum extent permitted by applicable law, the parties
agree that:
(a) the customer waives any right to receive a verification statement under the PPSA in respect of the security interest created by
these Terms; and
(b) the customer waives and, with CREA8 MANAGEMENT PTY LTD’s agreement contracts out of, the customer’s rights under sections 95, 96, 118, 121(4),
125, 129, 130, 132(3)(d), 132(4), 135. 142 and 143 of the PPSA. Terms defined in the PPSA shall have the same meaning when
used in this clause.
10. ACCOUNT LIMITS (FOR TRADING ACCOUNTS)
(a) Normally CREA8 MANAGEMENT PTY LTD will allow the customer to purchase and continue to purchase Goods as long as the total of the customer’s
account does not exceed the customer’s pre-approved account limit (if applicable).
(b) CREA8 MANAGEMENT PTY LTD may require further trade references or reports from the customer from time to time and additional information if the
customer applies to increase its account limit.
(c) CREA8 MANAGEMENT PTY LTD may increase or decrease the customer’s account limit (if any) at its absolute discretion without notice to the customer.
(d) The customer agrees that it will, on CREA8 MANAGEMENT PTY LTD’s request, also provide CREA8 MANAGEMENT PTY LTD further supporting documentation for the purpose of
assessing the customer’s credit worthiness.
(e) In no circumstances is CREA8 MANAGEMENT PTY LTD obliged to approve any application for an increase in the limit of the customer’s account.
11. CUSTOMER DEFAULT
11.1 If:
(a) the customer breaches any provision of these Terms (or any other agreement with CREA8 MANAGEMENT PTY LTD) and this constitutes a material
breach;
(b) the customer suffers any bankruptcy or insolvency event (including the appointment of any liquidator, receiver, administrator
or similar officer in respect of the customer or any of its assets; any resolution being passed, proceedings filed or order made
for the liquidation, receivership, administration, bankruptcy, winding-up or dissolution of the customer; the customer entering
into any compromise or arrangement with its creditors; or any analogous event under the laws of any applicable jurisdiction);
or
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Crea8 Management PTY LTD Pty Ltd Terms and Conditions September 2017
(c) any event occurs or information becomes known to CREA8 MANAGEMENT PTY LTD which, in CREA8 MANAGEMENT PTY LTD’s opinion, might materially affect the customer’s
creditworthiness or the customer’s ability or willingness to comply with its obligations under these Terms (or any other
agreement with CREA8 MANAGEMENT PTY LTD),
then without limiting any other right or remedy CREA8 MANAGEMENT PTY LTD may have, CREA8 MANAGEMENT PTY LTD may at any time without notice:
(d) suspend or terminate any or all existing and future contracts with the customer for the supply of Goods;
(e) suspend, cancel or vary any credit terms by notice to the customer and require immediate payment of any or all amounts
outstanding; or
11.2 The customer will pay on demand all costs (including legal costs on a solicitor/client basis) incurred by CREA8 MANAGEMENT PTY LTD in connection with any
default by the customer, any recovery or attempted recovery of any amount owed by the customer, or any other enforcement
action taken by CREA8 MANAGEMENT PTY LTD in connection with these Terms.
12. HANDLING
12.1 Consumable medical and surgical supplies: All orders with a value exceeding CREA8 MANAGEMENT PTY LTD’s “Handling Free Threshold” will be delivered
free of handling charges into the local metropolitan area. Orders less than this threshold will attract a handling charge. The Handling
Free Threshold and handling charge may be varied from time to time by CREA8 MANAGEMENT PTY LTD on notice to the customer (which may be by way of
notification via CREA8 MANAGEMENT PTY LTD’s website. CREA8 MANAGEMENT PTY LTD’s customer service staff can advise the customer of the applicable threshold and charges on
request. All orders outside the metropolitan area will be subject to handling charges which will be invoiced with the Goods.
Customer requests for urgent orders regardless of location may be subject to additional freight and handling costs.
12.2 Bulk items, Equipment and Furniture: The customer shall pay the cost of any freight and or handling costs associated with the
delivery of bulk items, equipment or furniture.
12.3 Cold Chain: These products may attract additional handling charges, whether or not the Handling Free Threshold has been met.
13. LIABILITY
13.1 To the maximum extent permitted by law, including the Australian Consumer Law, CREA8 MANAGEMENT PTY LTD’s liability for any defect in the goods or
their supply or related services (including any breach of warranty) is limited, at CREA8 MANAGEMENT PTY LTD’s option:
(a) in respect of Goods, to repairing or replacing the Goods (or supplying equivalent goods) or paying the cost of repairing or
replacing the Goods or supplying equivalent goods; and
(b) in respect of related services, to supplying the services again or payment of the cost of having the services supplied again.
13.2 CREA8 MANAGEMENT PTY LTD will not in any circumstances be liable for any consequential, special or indirect loss or damage or for any loss of profit,
savings or goodwill.
14. FORCE MAJEURE
14.1 CREA8 MANAGEMENT PTY LTD will not be liable, and the customer will not be entitled to cancel any purchase order, for any delay or failure by CREA8 MANAGEMENT PTY LTD to
perform its obligations under these Terms caused by any event or circumstance beyond CREA8 MANAGEMENT PTY LTD’s reasonable control (including fire,
accident, earthquake, flood, drought, crime, war, blockade, civil commotion, epidemic, strike, lockout or labour dispute, shortage of
fuel, power or raw material, inability to procure stock or transport, or acts or omissions by regulatory authorities).
15. PRIVACY
15.1 The customer consents to CREA8 MANAGEMENT PTY LTD collecting its personal information (as that term is defined in the Privacy Act 1988 (Cth) in order to
provide the customer with Goods or services requested. Without this information, CREA8 MANAGEMENT PTY LTD cannot provide Goods and services under
these Terms.
15.2 CREA8 MANAGEMENT PTY LTD may contact the customer with marketing material about CREA8 MANAGEMENT PTY LTD and CREA8 MANAGEMENT PTY LTD’s related businesses that may interest the
customer. CREA8 MANAGEMENT PTY LTD may disclose the customer’s personal information to its related companies and to third parties who provide
CREA8 MANAGEMENT PTY LTD with (or help CREA8 MANAGEMENT PTY LTD provide) products and services and to health care information services providers who may use it. CREA8 MANAGEMENT PTY LTD
may provide information to its information technology providers in locations outside the customer’s state or territory and to
locations overseas such as New Zealand, the USA and Canada.
15.3 Except where CREA8 MANAGEMENT PTY LTD may refuse access as permitted by law, the customer can gain access to the personal information CREA8 MANAGEMENT PTY LTD holds
about the customer. CREA8 MANAGEMENT PTY LTD’s privacy policy (available at www.Crea8.com.au) states how the customer can seek to access
or correct any personal information CREA8 MANAGEMENT PTY LTD holds about the customer, how to complain about a privacy breach by CREA8 MANAGEMENT PTY LTD and how
CREA8 MANAGEMENT PTY LTD will deal with a privacy complaint. You can contact us at theteam@crea8.com.au
16. RESUPPLY
16.1 The customer must not resupply the Goods outside Australia without CREA8 MANAGEMENT PTY LTD’s prior written consent.
17. MISCELLANEOUS
17.1 Nothing contained in these terms and conditions shall exclude or modify the application of any condition, warranty or liability which
is imposed by the provisions of any relevant legislation, including the Australian Consumer Law, to the extent to which any such
conditions, warranties or liabilities cannot lawfully be excluded.
17.2 The customer will no later than 14 days prior to any proposed change of ownership, change in its particulars, and any alteration or
addition to shareholders or directors, notify CREA8 MANAGEMENT PTY LTD in writing of the proposed change.
17.3 The proper law relating to the supply of the Goods is the law of the State of New South Wales and CREA8 MANAGEMENT PTY LTD and the customer agree to
submit to the jurisdiction of the Courts of that State.
17.4 Unless CREA8 MANAGEMENT PTY LTD agrees in writing, no waiver, variation or addition to these terms shall have any effect whatsoever. CREA8 MANAGEMENT PTY LTD may vary
these Terms from time to time. Any such variation will be effective from the date specified by CREA8 MANAGEMENT PTY LTD in any written notice provided
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Crea8 Management PTY LTD Pty Ltd Terms and Conditions September 2017
to the customer. By requesting, or continuing to request, any Goods after such effective date, the customer accepts and agrees to
be bound by such variation.
17.5 These Terms constitute the entire agreement between the parties for the supply of the Goods and supersede and exclude any
representation, agreement, arrangement or correspondence on the matter, any terms or documents submitted by the customer
and any terms implied by trade, custom, practice or course of dealing.
17.6 CREA8 MANAGEMENT PTY LTD may assign any of its rights and obligations to any person. The customer may not assign any of its rights and obligations to
any person without the prior written consent of CREA8 MANAGEMENT PTY LTD (such consent will not be unreasonably withheld).
17.7 The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply to the sale
and purchase of the Goods.
17.8 This clause applies if the customer is a trustee and whether or not CREA8 MANAGEMENT PTY LTD has notice of the trust.
(a) Where the customer comprises two or more persons and any of those persons is a trustee this clause applies to such trustee.
(b) The customer agrees that even though it enters into these terms as trustee of the trust, the customer also shall be liable
personally for the performance and observance of every covenant to be observed and performed by the customer expressed or
implied in these terms.
(c) The customer warrants it has complete, valid and unfettered power to enter into these terms pursuant to the provisions of the
trust and warrants that its entry into these terms is in the due administration of the trust.
(d) The customer covenants it has a right of indemnity against the property of the trust and it has not, and in the future will not be,
excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).
(e) The customer shall not, without CREA8 MANAGEMENT PTY LTD’s prior written consent (such consent will not be unreasonably withheld):
(i) resign or be removed as trustee of the trust or appoint or allow the appointment of a new or additional trustee of the
trust;
(ii) amend or revoke any of the terms of the trust;
(iii) vest or distribute the property of the trust or advance or distribute any capital of the trust to a beneficiary or resettle any
of the property of the trust;
(iv) permit a beneficiary to have the use, occupation, employment or possession of the property of the trust;
(v) do or permit or omit to do an act or thing in breach of the trust or which would permit the trustee to be removed as
trustee of the trust;
(vi) exercise or permit or allow to be exercised a power to change the vesting date of the trust or provide for an early
determination of the trust;
(vii) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the trust; or
(viii) pay any of the income of the trust to any beneficiary of the trust if such payment will prejudice or affect the customer’s
ability to pay all monies due to CREA8 MANAGEMENT PTY LTD