TERMS & CONDITIONS OF TRADING
RELATING TO ALL SALES ORDERS ENTERED INTO WITH ENSO INTERNATIONAL PTY LTD
The following terms and conditions apply to Sales Orders with Enso International Pty Ltd (ABN 33 620 925 680). The terms in clauses 19 to 23 inclusive apply to Sales Orders that include any ePortal facility.
1 Definitions
In these Terms and Conditions of Trading, unless the context otherwise requires:
Account Application means an application made by the Customer requesting Enso International Pty Ltd not to require immediate payment upon order or delivery of goods or the provision of services by Enso International Pty Ltd.
Account has the same meaning as that term is defined in the PPS Act.
Accession has the same meaning as that term is defined in the PPS Act.
Amendment Demand has the same meaning as that term is defined in the PPS Act.
Annual Quantity means the minimum amount of Product to be purchased by the Customer over a period of 12 calendar months commencing on the date of commencement of the Term.
Artwork includes, but is not limited to, any drawing, sketch, painting, photograph, graphic art, logo, trademark or other design.
Business Day means a day that is not:
(a) A Saturday or Sunday; or
(b) A public holiday, special holiday or bank holiday in NSW.
Contract of Sale means the contract arising from the acceptance by Enso International Pty Ltd, on these Terms and Conditions of Trading, of the Customer’s order.
Collateral has the same meaning as that term is defined under the PPS Act.
Control has the same meaning as that term is defined under the PPS Act.
Direct Debit Request Form means the document so titled under which the Customer grants Enso International Pty Ltd authority to make deductions from the Customer’s nominated bank account or credit card.
Disclosure Agreement means any statement or agreement provided by Enso International Pty Ltd making specific disclosures and/or setting out additional terms and conditions relating to the Products.
EPortal means the ordering, storage, reporting and delivery system of Enso International Pty Ltd, accessible via the Web Ordering Portal or by facsimile, as determined by Enso International Pty Ltd in its absolute discretion.
Guarantor means each and every person who guarantees the obligations of the Customer under these Terms and Conditions of Trading, any Sales Order and/or pursuant to any Account Application, or any other document between Enso International Pty Ltd and the guarantor.
Financing Change Statement has the same meaning as that term is defined under the PPS Act.
Financing Statement has the same meaning as that term is defined under the PPS Act.
Force Majeure means:
(a) An act of God;
(b) War, revolution, terrorism or any other unlawful act against public order or authority;
(c) An industrial dispute;
(d) A government restraint; or
(e) any other event that is not within Enso International Pty Ltd's control.
Head Office means the Customer’s principal place of business.
Insolvency Event means any of the following events:
(a) an application is made or an order is made, proceedings are commenced, a resolution is passed, a notice of meeting or an application to the Court or other steps are taken for the receivership, winding up, dissolution, official management or administration of the Customer;
(b) the Customer enters into an arrangement, compromise or composition or assignment for the benefit of its creditors or any class of its creditors;
(c) the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of the Customer’s business;
(d) the Customer is, or is deemed to be, unable to pay its debts when they fall due (other than as a result of a failure to pay a debt or claim that is subject of a good faith dispute) or stops or suspends or threatens to stop or suspend payment of its debts; or
(e) a receiver, a receiver and manager, liquidation, provisional liquidator, administrator or similar officer is appointed to the Customer or any of its property or a distress, attachment or other form of execution is levied or enforced or if a mortgagee or chargee enters or takes possession of any of the Customer’s property. Intellectual Property Rights means any intellectual, moral, industrial or commercial or right of a proprietary nature including:
(a) any patent, trade mark, service mark or design;
(b) any copyright or work of authorship;
(c) any business, trade or commercial name or designation, brand name, internet website or domain name, logo, symbol, source indication or original application;
(d) any Artwork;
(e) any other industrial or commercial right derived from intellectual knowledge or activity of any industrial, scientific, literary or artistic nature or description, whether relating to any manufactured or natural service or otherwise;
(f) any license or other right to use or grant the user, or become the registered proprietor or use of, any item,
(g) any licence or other right to use or grant the user or become registered proprietor or user of any previous item, whether registered or unregistered or recorded or unrecorded, stored or incorporated in a medium of any nature or description.
Outlets means retail outlets of the Customer.
Personal Information has the same meaning given to it under the Privacy Act.
Personal Property has the same meaning as that term is defined in the PPS Act.
PMSI means a purchase money security interest as that term is defined in the PPS Act.
PPS Act means the Personal Property Securities Act 2009.
Price means the amount payable by the Customer in respect of the Products specified in a Sales Schedule.
Privacy Act means the Privacy Act 1988 (Cth) including the National Privacy Principles, as amended.
Possession has the same meaning as that term is defined in the PPS Act.
Proceeds has the same meaning as that term is defined in the PPS Act.
Product means the products specified on the front page of a Sales Order.
Sales Order means a Sales Schedule and these Terms and Conditions of Trading.
Sales Schedule means the schedule contained on the front page of the Sales Orders setting out the Product specifications.
Secured Party has the same meaning as that term is defined in the PPS Act.
Security Interest has the same meaning as that term is defined in the PPS Act.
Term means the period set out in any Sales Order under an EPortal facility or otherwise in accordance with clause 23 of these Terms and Conditions of Trading. Terms and Conditions of Trading means these terms and conditions.
Terms of Payment means the terms of payment of the Price (including the payment of a deposit) specified in the Sales Schedule.
Territory means Australia & New Zealand.
Web Ordering Portal means the secure web portal established by Enso International Pty Ltd to enable the Customer to place orders for Products and accessible via a website as directed by Enso International Pty Ltd.
2 Supply and Prices
2.1 Enso International Pty Ltd shall, subject to these Terms and Conditions of Trading, supply the Products to the Customer for the Price. The Customer shall pay Enso International Pty Ltd the Price in accordance with the Terms of Payment.
2.2 If the Terms of Payment provide that the Customer is to pay a deposit, that deposit must be paid in full prior to production of the Products and Enso International Pty Ltd shall be entitled to delay production until the deposit is paid by the Customer in full. The deposit paid is non-refundable and will be reduced off the Price. Enso International Pty Ltd will be entitled to recover from the Customer the deposit as a debt due to Enso International Pty Ltd by the Customer if the Customer defaults in the observance of any obligations under a Sales Order and Enso International Pty Ltd will be entitled to retain the deposit and apply it against the liability of the Customer pursuant to any Sales Order. The rights in this clause do not limit any remedies Enso International Pty Ltd may have against the Customer under any Sales Order. Without limiting Enso International Pty Ltd's rights or entitlements, Enso International Pty Ltd may at any time in its complete discretion use the deposit to pay any debts, liabilities or other claims for which it may become liable for or to any third party with respect to any Sales Order or Product (or material that may form part of the Product). The Customer agrees the deposit paid is a genuine pre-estimate of the loss or damage that Enso International Pty Ltd will incur or suffer if the Customer does not observe its obligations under the Sales Order.
2.3 If the Customer is to pay all or part of the Price on receipt of an invoice or upon delivery of the Product, the Customer shall pay that amount immediately upon receipt of an invoice or upon delivery of the Products (as the case may be) and Enso International Pty Ltd shall be entitled to withhold delivery of the Products until the required amount is paid to Enso International Pty Ltd in full.
2.4 The Customer shall strictly comply with the terms of credit set out in the Terms of Payment or in the Account Application entered into by the Customer and Enso International Pty Ltd. In the case of inconsistency between the Terms of Payment and the Account Application, the Terms of Payment shall prevail.
2.5 Where the Customer elects to make any payment (“Original Payment’) to Enso International Pty Ltd by way of credit card, the Customer shall be required to pay to Enso International Pty Ltd, in addition to the Original Payment, an additional amount equal to 3% of the Original Payment.
2.6 The Customer may elect, and Enso International Pty Ltd may require the Customer as a condition of Enso International Pty Ltd entering into the Sales Order, to make payment of all invoices by way of direct debit or credit card by completing and submitting a Direct Debit Request Form. By providing Enso International Pty Ltd with a completed Direct Debit Request Form the Customer acknowledges and agrees to the terms and conditions set out in the Direct Debit Request Form and authorizes Enso International Pty Ltd to deduct from the Customer’s nominated bank account or credit card all payments required to be made by the Customer in accordance with a Sales Order, as and when each payment becomes due and payable. The authority given by the Customer to make deductions from the Customer’s nominated bank account or credit card shall remain valid until revoked in writing by the Customer in accordance with the terms and conditions set out in the Direct Debit Request Form.
3 Payment
3.1 Unless otherwise specified in the Sales Schedule, the Customer must pay all invoices on receipt of the invoice. Enso International Pty Ltd may invoice the Customer in respect of an order at any time after that order is placed with Enso International Pty Ltd. If any payment is not made within this period, Enso International Pty Ltd is entitled to:
(a) refuse to make any further supply of Products to the Customer;
(b) demand and receive immediate payment of any invoice in respect of a Sales Order, whether payment is due or not;
(c) charge interest at the rate of 10% per annum, compounding monthly, calculated on a daily basis from the due date for payment until payment is made; and
(d) recover possession of all Product or Collateral to which Enso International Pty Ltd has retained title or holds a Security Interest.
3.2 Enso International Pty Ltd will send all invoices to the Customer at the address specified in the Sales Schedule as the place of delivery of the Products.
3.3 The Customer must lodge for approval by Enso International Pty Ltd, an Account Application governing the terms upon which credit may be provided in connection with the supply of Products. Until the Account Application has been approved, Enso International Pty Ltd is under no obligation to supply Products.
4 Delivery
4.1 Enso International Pty Ltd shall not be liable for any loss or damage whatsoever due to the failure by Enso International Pty Ltd to deliver the Products (or any of them) promptly or at all. Notwithstanding that Enso International Pty Ltd may have delayed or failed to deliver the Products (or any of them) promptly, the Customer shall be bound to accept delivery and to pay for the Products in full provided that delivery shall be tendered at any time within 1 month of the expected date of delivery.
4.2 The Customer shall inspect the Products on delivery and shall within 2 days of delivery notify Enso International Pty Ltd of any alleged defect, damage or failure to comply with the description in the Sales Schedule. The Customer shall afford Enso International Pty Ltd an opportunity to inspect the Products within a reasonable time following delivery and before any use is made of the Products. If the Customer fails to comply with these provisions, the Products shall be conclusively presumed to be in accordance with the Sales Order and free from defect or damage and in accordance with the description of the Products in the Sales Schedule and the Customer shall be deemed to have accepted the Products.
4.3 Enso International Pty Ltd may make part deliveries of an order and each part delivery shall constitute a separate agreement. Failure to make a delivery of the total order shall not invalidate the Sales Order as regards other deliveries. Where Enso International Pty Ltd makes part delivery, Enso International Pty Ltd may invoice the Customer for the Products delivered on each separate delivery.
4.4 Where the Customer has not specified delivery instructions at the time of placing an order for the Products, and the Customer has failed to provide such delivery instructions to Enso International Pty Ltd within 3 days of a request by Enso International Pty Ltd, Enso International Pty Ltd may impose a charge on the Customer for storage of the Products at the prevailing market rate for storage or the actual cost of storage (at the election of Enso International Pty Ltd). The parties agree that Enso International Pty Ltd may charge for storage from the first day after Enso International Pty Ltd has requested the Customer to provide delivery instructions until the day upon which the Products have been delivered to the Customer. Notwithstanding clause 4.1, Products stored in accordance with this clause under Enso International Pty Ltd’s possession, custody or control is completely at the Customer’s risk.
5 Risk and Ownership
5.1 The risk of loss or damage to Products shall pass to the Customer at the time that the Products arrive at an Outlet.
5.2 Title to Products shall remain with Enso International Pty Ltd, and the Customer acknowledges and agrees that Enso International Pty Ltd is hereby granted a Security Interest in the Products, until full payment is made of all moneys owing to Enso International Pty Ltd from time to time.
5.3 Until Enso International Pty Ltd has been paid all moneys owed by the Customer:
(a) the Customer shall store all Products in a manner that identifies them as Enso International Pty Ltd’s goods, separate and in good condition;
(b) the Customer shall hold the Products as bailee of Enso International Pty Ltd, subject to the Customer’s right to deal with the Products in the ordinary course of the Customer’s business; and
(c) the Customer shall indemnify Enso International Pty Ltd against any claim arising out of the possession, use or disposal of the Products by the Customer.
5.4 To the extent permitted by law, if there is a default under these Terms and Conditions of Trading or the Customer fails to make payment of any monies by the due date, each Security Interest created in Enso International Pty Ltd’s favour will become immediately enforceable. If:
(a) a payment is not made by the Customer in accordance with a Sales Order; or
(b) Enso International Pty Ltd receives notice of or reasonably believes that a third person may attempt to levy execution against any Products; or
(c) an Insolvency Event occurs, then Enso International Pty Ltd may, at any time without notice to the Customer, and without prejudice to any other rights that it may have against the Customer:
(d) terminate the bailment referred to above; and
(e) enter upon any premises of the Customer (including any Outlet) where Enso International Pty Ltd reasonably believes Products may be stored and retake possession of the Products without liability for trespass or any resulting damage;
(f) keep or resell the Products repossessed pursuant to paragraph (e) and pay any expenses incurred in the exercise of Enso International Pty Ltd’s rights from such realisations.
5.5 Enso International Pty Ltd has, to secure all monies payable by the Customer to Enso International Pty Ltd at any time, a PMSI in each of the Products supplied to the Customer from time to time and the Enso International Pty Ltd Security Interest shall extend to the Proceeds (including any Account) and Accessions. To the extent that the PPS Act provides that Enso International Pty Ltd does not have a PMSI in the Products and any Proceeds arising in respect of the Products, the Customer agrees that Enso International Pty Ltd continues to hold a Security Interest in the Products. The Security Interest will continue until Enso International Pty Ltd provides the Customer with a final release.
5.6 The Customer agrees to execute any documents, provide all relevant information and full cooperation to Enso International Pty Ltd to ensure that Enso International Pty Ltd has a Security Interest in the Products and the Proceeds, and if applicable, a PMSI.
5.7 Whenever Enso International Pty Ltd requests the Customer to better secure any Collateral which secures or intends to secure the supply of Product and/or services to the Customer under any Sales Order or these Terms and Conditions of Trading, the Customer must do it immediately at the Customer’s cost, including executing any documents requested by Enso International Pty Ltd, in order to ensure Enso International Pty Ltd has perfected a Security Interest giving Enso International Pty Ltd priority in the Collateral under the PPS Act.
5.8 The Customer agrees Enso International Pty Ltd may take whatever step it determines appropriate to ensure Enso International Pty Ltd has a first ranking priority in the Collateral, and the Customer indemnifies Enso International Pty Ltd from any costs in ensuring such priority, including the cost of any amendment of any Financing Statement or any Financing Change Statement. The Customer must pay Enso International Pty Ltd’s costs of registering, discharging or amending any Financing Statement or Financing Change Statement.
5.9 The Customer agrees that if Enso International Pty Ltd has any rights in addition to the PPS Act, those rights continue and are in addition to the rights of Enso International Pty Ltd under the PPS Act.
5.10 The Customer will, upon Enso International Pty Ltd’s request, immediately obtain or procure from any person such agreements or waivers as Enso International Pty Ltd may require in relation to Enso International Pty Ltd’s Security Interest in the Collateral.
5.11 The Customer must, within 48 hours of a request by Enso International Pty Ltd, provide to Enso International Pty Ltd all documents granting a Security Interest registered over the Customer’s Personal Property, including any Security Interest perfected by Possession or Control. The Customer hereby authorises Enso International Pty Ltd as the Customer’s authorised representative to request any information under section 275 of the PPS Act from any Secured Party in relation to any Security Interest.
5.12 The Customer must give Enso International Pty Ltd 10 Business Days prior written notice of any proposed change in name and any change in details of the Customer, including without limitation, the Customer’s address, email, facsimile or business practice. The Customer must advise Enso International Pty Ltd immediately of any material change in the Customer’s practice of selling the Products and/or the Collateral which would result in a change in the Proceeds received from such a sale of the Products and/or Collateral.
5.13 The Customer must not, without Enso International Pty Ltd’s written consent, file, lodge or serve a Financing Change Statement or an Amendment Demand.
5.14 The Customer must not permit any Products to become an Accession to or to be manufactured, processed, assembled or commingled with anything that Enso International Pty Ltd does not own or is not subject to a perfected Security Interest in favour of Enso International Pty Ltd, and even then only if the priority of that Security Interest is no less favourable than the priority of Enso International Pty Ltd’s Security Interest in those Products.
5.15 The Customer must:
(a) do or cause to be done anything which Enso International Pty Ltd considers necessary or desirable to perfect and protect any Security Interest provided for by these Terms and Conditions of Trading; and
(b) provide Enso International Pty Ltd with all information it needs in order to ensure that any registration of any Security Interest provided for by these Terms and Conditions of Trading is, and remains, fully effective and with the priority that Enso International Pty Ltd requires.
5.16 Where the Customer is a natural person, the Customer warrants that he/she has not had any other name in the last 5 years other than the name in the Account Application or Sales Order (except as notified to Enso International Pty Ltd) and the Customer agrees not to change his/her name without first giving Enso International Pty Ltd 30 Business Days' notice in writing of the proposed new name.
5.17 If the Customer disposes of the Products in a way that gives rise to an Account, the Customer grants Enso International Pty Ltd a Security Interest in that Account.
5.18 The Customer must do everything necessary to protect Enso International Pty Ltd’s title to and Security Interest in the Products, including advising third parties of its ownership of and Security Interest in the Products. The Customer must refrain from doing anything which could give rise to any claim adverse to Enso International Pty Ltd’s ownership of and Security Interest in the Products. The Customer must notify Enso International Pty Ltd immediately if a third party makes any such claim.
5.19 The Customer acknowledges that Enso International Pty Ltd may register one or more Financing Statements (or Financing Change Statements) in relation to any Security Interest provided for by these Terms and Conditions of Trading. If permitted by the PPS Act, the Customer waives its right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such Financing Statement or any related Financing Change Statement.
5.20 To the extent that Chapter 4 of the PPS Act would otherwise apply to an enforcement by Enso International Pty Ltd of any Security Interest provided for by these Terms and Conditions of Trading, Enso International Pty Ltd and the Customer agree with each other that the following provisions of the PPS Act do not apply:
(a) to the extent that section 115(1) of the PPS Act allows them to be excluded: sections 95, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143 and any other provision of the PPS Act notified to the Customer by Enso International Pty Ltd after the date of these Terms and Conditions of Trading; and
(b) Enso International Pty Ltd need not give any notice (including notice of a verification statement) required under any provision of the PPS Act.
If section 115(1) of the PPS Act does not allow section 125 of the PPS Act to be excluded, the Customer agrees that at any time after any Security Interest provided for by these Terms and Conditions of Trading has become enforceable, Enso International Pty Ltd may delay disposing of, or taking action to retain, the whole or part of the Collateral to the extent permitted by law.
6 Artwork
6.1 If the Customer provides Enso International Pty Ltd with any Artwork for Enso International Pty Ltd to reproduce on the Products, it warrants that Enso International Pty Ltd’s reproduction of the Artwork or modifications of the Artwork on the Products will not infringe the Intellectual Property Rights or any other right of any third party in respect of the Artwork.
6.2 The Customer indemnifies Enso International Pty Ltd for any damage, expense, loss or liability that Enso International Pty Ltd suffers or incurs in respect of a breach of the warranty provided in clause 6.1.
6.3 The Intellectual Property Rights in any Artwork created by Enso International Pty Ltd for the Products is owned by Enso International Pty Ltd. The Customer shall not at any time reproduce or cause or authorise any third party to reproduce any such Artwork without the prior written consent of Enso International Pty Ltd.
6.4 Where Enso International Pty Ltd exercises its rights under clauses 5.4(e) and (f), Enso International Pty Ltd will not be liable for any infringement of the Intellectual Property Rights in the Artwork that may be reproduced on the relevant Products and the Customer releases and indemnifies Enso International Pty Ltd in respect any infringement of Intellectual Property Rights that may be caused or contributed to by the repossession and sale of Products containing the Artworks by Enso International Pty Ltd in accordance with clauses 5.4(e) and (f).
7 Intellectual Property
7.1 The parties acknowledge that Enso International Pty Ltd owns all Intellectual Property Rights subsisting in the Products and any documents supplied by Enso International Pty Ltd in connection with the Products. Nothing in these Terms and Conditions of Trading or the sale of the Products transfers ownership of any of the Intellectual Property Rights subsisting in the Products or related documents.
7.2 The Customer must not exercise any of the rights of Enso International Pty Ltd as owner of the Intellectual Property Rights subsisting in the Products and related documentation except as expressly permitted by the terms of these Terms and Conditions of Trading.
7.3 The Customer must not reverse assemble or reverse compile or directly or indirectly cause or allow a third party to reverse assemble or reverse compile the whole or any part of the Products, any Artwork or documentation.
8 Guarantee
8.1 The Guarantor expressly and unconditionally guarantees to Enso International Pty Ltd the due and punctual performance of all terms and conditions and obligations of the Customer, and the Guarantor indemnifies Enso International Pty Ltd from and against all loss, damage, costs and expenses which may be suffered or incurred by Enso International Pty Ltd in consequence of or in relation to or arising out of any default by the Customer under any provision of these Terms and Conditions of Trading or any Sales Orders.
8.2 The guarantee provided under this clause shall be a continuing guarantee and shall remain in full force and effect notwithstanding the liquidation of or the appointment of a receiver or a receiver and manager or a scheme manager or an administrator to the Customer or a controller to the assets of the Customer, and shall be irrevocable and shall remain in full force and effect until all terms and conditions and obligations of the Customer have been discharged and satisfied in full. This guarantee and the liability of the Guarantor shall not be affected, prejudiced or abrogated by the granting of time, credit or other indulgence or concession by Enso International Pty Ltd to the Customer or by any variation or alteration of or modification to the terms of these Terms and Conditions of Trading or any Sales Order, whether with or without the consent of the Guarantor.
8.3 The Guarantor agrees to grant to Enso International Pty Ltd a legal mortgage of any land at any time held by the Guarantor, which mortgage must contain a covenant to the effect of clause 8.1, and as beneficial owner charges in Enso International Pty Ltd’s favour all property, assets and undertakings at any time held by the Guarantor as security for the payments required to be made and performance by the Customer of its obligations under these Terms and Conditions of Trading or any Sales Order. The Guarantor acknowledges and agrees that Enso International Pty Ltd may lodge a caveat on title of any property held by any Guarantor or register a charge in favour of Enso International Pty Ltd in respect of any or all property, assets and undertakings of the Guarantor, and the Guarantor shall not make any objection, requisition or claim in relation to any such caveat or charge and will sign all documents and offer all assistance necessary to give effect to this clause.
9 GST
9.1 The Price does not include goods and services tax. If the whole or any part of any amount payable by the Customer under these Terms and Conditions of Trading or any Sales Order is consideration for a taxable supply, the Customer must pay Enso International Pty Ltd an additional amount equal to that amount multiplied by the appropriate rate of GST (currently 10%). This amount must be made concurrently with the payment of the Price.
10 Termination
10.1 If the Customer breaches any provision of these Terms and Conditions of Trading or any Sales Order or commits an Insolvency Event, Enso International Pty Ltd may, in its absolute discretion, take one or more of the following courses of action:
(a) terminate any entitlements under any Account Application, these Terms and Conditions and/or any Sales Order by written notice to the Customer;
(b) suspend Enso International Pty Ltd’s performance until the Customer has remedied its breach;
(c) amend the Terms of Payment for future orders; and
(d) forfeit in favour of Enso International Pty Ltd any deposit paid to Enso International Pty Ltd.
10.2 Upon termination of these Terms and Conditions of Trading or any Sales Order, Enso International Pty Ltd can elect to sell, in which case the Customer must purchase from Enso International Pty Ltd, all stocks of Product held by Enso International Pty Ltd. Immediately upon making such election, Enso International Pty Ltd may invoice the Customer for the Products and the Customer must pay the invoice upon receipt. Stocks of Product include but are not limited to Products for which Enso International Pty Ltd has placed binding orders from its suppliers. Enso International Pty Ltd shall not place orders for Products after it has delivered a notice of termination to the Customer.
10.3 The Customer has no entitlement to terminate any Sales Order other than in accordance with these Terms and Conditions of Trading.
11 Confidentiality
The Customer shall keep the terms of these Terms and Conditions of Trading and any Sales Order, the dealings of the parties pursuant to any Sales Order and all information about Enso International Pty Ltd and its business, including information on the Web Ordering Portal, confidential, except that the Customer may disclose such matters to its advisers for the purpose of receiving advice and in order to comply with a disclosure required by law, order of a Court or action of a government agency.
12 Personal Information
12.1 Enso International Pty Ltd may collect, use and disclose Personal Information about the Customer and any Guarantor:
(a) for the primary purpose of providing the Products to the Customer.
(b) for purposes that are related to providing the Customer with the Products (or for purposes which would be reasonably expected) including but not limited to determining whether to accept an Account Application of the Customer, start, stop or limit the supply of the Products to the Customer, billing and account management.
12.2 Enso International Pty Ltd may receive and disclose Personal Information or documents about the Customer or any Guarantor to or from:
(a) credit providers or credit reporting agencies for the purposes permitted under the Privacy Act; and
(b) law enforcement agencies to assist them in prevention of criminal activity; or
(c) as provided for in any Account Application.
12.3 If the Customer is an individual Enso International Pty Ltd will at the Customer’s request:
(a) provide the Customer with access to the Customer’s Personal Information held by Enso International Pty Ltd; and
(b) correct any Personal Information of the Customer that is inaccurate, incomplete or out of date, in accordance with the Privacy Act.
13 Warranty and limitation of liability
13.1 All implied conditions and warranties are excluded to the maximum extent permitted by law. To the extent permitted by law, Enso International Pty Ltd makes no representations and gives no warranty to the Customer in connection with the supply of Product other than as set out in these Terms and Conditions of Trading.
13.2 The Customer agrees that it may only make a claim against Enso International Pty Ltd under these Terms and Conditions of Trading or any Sales Order, any law or otherwise, if that claim is made in writing within 21 days of the circumstances giving rise to the claim first becoming known by the Customer or could, with reasonable diligence, have become known to the Customer.
13.3 The liability of Enso International Pty Ltd for a breach of a condition or warranty that by law cannot be excluded is limited, at Enso International Pty Ltd’s option, to:
(a) the replacement or repair of the Products or the supply of equivalent goods; or
(b) the cost of replacing or repairing the Products or of acquiring equivalent Product;
(c) providing the services again or supplying equivalent services.
13.4 To the maximum extent permitted by law, Enso International Pty Ltd is not liable to make any payment (whether by way of indemnity, damages or otherwise):
(a) for any loss or damage to the Products arising in connection with any act or omission on the part of the Customer, or the employees, contractors or agents of the Customer; and
(b) any direct loss or damage incurred by the Customer or any other person (including but not limited to property damage and personal injury), or indirect loss or damage incurred by the Customer or any other person (including but not limited to loss of profit and loss of business opportunity) in connection with:
(i) the breach by Enso International Pty Ltd of any Sales Order or the supply of Products under any Sales Order; or
(ii) any act or omission (including negligence) of Enso International Pty Ltd or any related party of Enso International Pty Ltd; or
(iii) any malfunction of the Web Ordering Portal.
13.5 The Customer indemnifies and holds harmless Enso International Pty Ltd and its officers, employees and agents from and against any claim, loss, liability, cost and expense that may be incurred or sustained by them as a result of any breach of any Account Application, these Terms and Conditions of Trading or any Sales Order by the Customer or any negligent act or omission of the Customer or its representatives.
14 Force Majeure
In the event of Force Majeure or other inability of Enso International Pty Ltd (having used its best endeavours) to supply the Products under these Terms and Conditions of Trading or any Sales Order, Enso International Pty Ltd may terminate or suspend any Sales Order. In either case, the Customer shall not make any claim against Enso International Pty Ltd in respect of such suspension and/or termination.
15 Amendments
15.1 Enso International Pty Ltd may make amendments to these Terms and Conditions of Trading or any Sales Orders from time to time if:
(a) the amendments will benefit or will not permanently and adversely affect the Customer; or
(b) the Customer agrees to the amendments; or
(c) Enso International Pty Ltd reasonably expects the amendments to permanently and adversely affect the Customer, and Enso International Pty Ltd has given the Customer reasonable notice of the amendments and offering the Customer the right to terminate any Sales Orders (without fault) within 30 days of the notice and the Customer does not terminate the Sales Order.
15.2 Any amendments to these Terms and Conditions of Trading or any Sales Order have no force or effect unless effected by Enso International Pty Ltd in accordance with clause 15.1 or otherwise agreed in writing by Enso International Pty Ltd.
16 Other
16.1 Enso International Pty Ltd may without notice assign or transfer any right or liability under these Terms and Conditions of Trading or any Sales Order. Where required by Enso International Pty Ltd to effect the transfer of any such rights or liabilities, the Customer will sign and enter into an agreement on substantially similar terms and conditions as these Terms and Conditions of Trading or Sales Order with the party to which Enso International Pty Ltd transfers its right and liabilities. The Customer may not assign or transfer any right or liability under these terms and Conditions of Trading or any Sales Order without the prior written consent of Enso International Pty Ltd.
16.2 No failure to exercise and no delay in exercising any right, power or remedy under these Terms and Conditions of Trading or any Sales Order will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. Any waiver by Enso International Pty Ltd of any right, power or remedy under these Terms and Conditions of Trading or any Sales Order must be express and given in writing by Enso International Pty Ltd.
16.3 These Terms and Conditions of Trading and any Sales Order shall be construed in accordance with the laws of Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
16.4 The Sales Schedule, these Terms and Conditions of Trading, the Account Application and any Disclosure Agreement, where provided, together form the agreement between the parties with respect to the supply of Products to the Customer and constitute the sole understanding with respect to its subject matter and supersedes all prior understandings, written or oral.
ePortal Facility
The following terms and conditions apply to Sales Orders where Enso International Pty Ltd has agreed to make the ePortal service available to a Customer
17. Appointment
The Customer appoints Enso International Pty Ltd for the Term as the exclusive supplier of the Products to Outlets in the Territory.
18. Annual Quantity
18.1 The Customer agrees to purchase from Enso International Pty Ltd an amount of each Product that is equal to or exceeds the Annual Quantity specified in the Sales Schedule for each Product.
18.2 If the amount of Product purchased by the Customer during each quarter during the Term is less than 25% of the Annual Quantity (Shortfall), Enso International Pty Ltd may do either or both of the following things:
(a) invoice the Customer for the Shortfall; and
(b) charge the Customer for storage of the Shortfall at the prevailing market rate for storage or the actual cost of storage, commencing on the day immediately following the relevant quarter.
19 Orders
19.1 Each Outlet or Head Office will order its requirements for Products directly from Enso International Pty Ltd via the Web Ordering Portal.
19.2 The depiction of Products on the Web Ordering Portal, whether visual or textual, is not to be construed as an obligation to sell but merely an invitation to treat.
19.3 Enso International Pty Ltd will provide the Customer with a unique User Name, a unique password and a unique account number to enable authorised employees of the Customer to access the Web Ordering Portal. These three items of information must be entered into the entry screen of the Web Ordering Portal in order to gain access to the Web Ordering Portal. The Customer must ensure that:
(a) it only discloses the user name, password and account number to employees of the Customer that are authorised to place orders for Products; and
(b) such employees:
(i) do not tell anyone their user name or the password;
(ii) do not allow anyone to watch them enter this information in the Web Ordering Portal;
(iii) make a reasonable attempt to disguise the password in any record made of the password - that is, scramble the details in such a way that others will not be able to decode the password; and
(iv) keep records of the password away from computers that allow access to the Web Ordering Portal.
19.4 The Customer must notify Enso International Pty Ltd immediately upon becoming aware that any password has been lost or stolen or the Customer suspecting that any password has been disclosed to a third party.
19.5 The Customer indemnifies and holds harmless Enso International Pty Ltd and it employees and agents from and against all actions, claims, proceedings or demands that may be brought or made against it or them or any of them in respect of any loss, injury or damage arising out of the use of the Web Ordering Portal (including but not limited to any unauthorised use of the Web Ordering Portal) and from and against all damages, costs and expenses incurred in defending or settling any action, claim, proceeding or demand arising from such breach, act or omission.
19.6 A notice generated by the Web Ordering Portal acknowledging the Customer’s order has been received by Enso International Pty Ltd for processing, or a notice by Enso International Pty Ltd to the Customer to verify or vary details of the order shall not constitute an acceptance of the order.
19.7 Enso International Pty Ltd reserves the right to accept or decline the Customer’s order at any time and for any reason, or to require the Customer to provide additional verification or information associated with an order. Any order accepted by Enso International Pty Ltd is on these Terms and Conditions of Trading, irrespective of any Customer terms on any order.
19.8 Orders may not be altered or cancelled by the Customer without the written agreement of Enso International Pty Ltd. If Enso International Pty Ltd agrees to alter or cancel an order, the Customer shall pay to Enso International Pty Ltd any loss, damage or reasonable expense incurred in relation to that order.
19.9 The Customer shall use its best endeavours to ensure that each of the Outlets does not place orders for Products with a minimum total value less than the minimum specified in the Sales Schedule. Enso International Pty Ltd may charge the Customer an administration charge for each order placed with it that has a value less than the minimum value.
20 Prices Payable
20.1 The Customer must pay Enso International Pty Ltd for the Products that Outlets or Head Office order at the current prices agreed for the Products by Enso International Pty Ltd and the Customer. The prices applicable upon commencement of a Sales Order are specified in the Sales Schedule. If an order has not been invoiced before a price change in accordance with clause 20.2, the Products that comprise that order will be supplied at the new price for those Products.
20.2 If any Sales Order is renewed in accordance with clause 21.2, Enso International Pty Ltd may increase the price of the Products by giving written notice to the Customer. Excluding any component of a price increase due to taxation, price increases will not exceed 15% of the Product price as agreed under clause 20.1 during the extended Term.
20.3 Enso International Pty Ltd reserves the right, by notice to the Customer at any time before delivery of the Products, to increase the price of the Products to reflect any increase in the cost to Enso International Pty Ltd of producing and/or delivering the Products due to any factor beyond Enso International Pty Ltd’s reasonable control. The Customer shall, by executing the Sales Schedule, accepts and will pay any such price increase as notified to the Customer by Enso International Pty Ltd.
20.4 If required by Enso International Pty Ltd, the Customer must pay a fee for the use of the EPortal facility service. Such a fee is payable in addition to the price paid for Products under clauses 20.1 and 20.2. If such a fee is applicable to this Sales Order it will be set out in the Sales Schedule.
21 Term
21.1 The Term is 24 months from the date of execution of the Account Application.
21.2 These Terms and Conditions of Trading will automatically renew for a period of 24 months unless the Customer gives Enso International Pty Ltd written notice 6 months before the end of the current Term that it does not intend to renew the EPortal facility.