Trade Account Terms & Conditions of Sale

1.1 In this Agreement, unless the context otherwise requires, the following terms have the meanings set out below:

• "ACL" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
• "Agreement" means these Terms of Sale – Trade Account (including any schedules), as amended from time to time.
• "Authorised User" means any director, officer, employee, contractor, agent or other person who accesses or uses the Trade Account with the Buyer's express or implied authority.
• "Business Day" means a day that is not a Saturday, Sunday or public holiday in New South Wales.
• "Buyer" means the trade account holder identified in the relevant Trade Account Application, Credit Application, quotation, Order, invoice or other trading record.
• "Cash Trade Account" means a Trade Account without an approved Credit Facility, requiring payment in full prior to dispatch or collection.
• "Confidential Information" has the meaning given in clause 19.
• "Consequential Loss" means any:
  • (a) consequential or indirect loss;
  • (b) loss of anticipated or actual profits or revenue;
  • (c) loss of production or use;
  • (d) financial or holding costs;
  • (e) loss or failure to realise any anticipated savings;
  • (f) loss or denial of business or commercial opportunity;
  • (g) loss of or damage to goodwill, business reputation or publicity;
  • (h) loss or corruption of data;
  • (i) downtime costs or wasted overheads; or
  • (j) special, punitive or exemplary damages, whether or not in the reasonable contemplation of the parties at the time of entering into this Agreement.
• "Consumer Contract" has the meaning given in section 23(3) of the ACL.
• "Credit Facility" means a credit facility approved by the Supplier in accordance with clause 4.
• "Credit Trade Account" means a Trade Account with an approved Credit Facility.
• "Customer Material" means all information, specifications, designs, drawings, data and other documentation provided to the Supplier by the Buyer (or on the Buyer's behalf) in the course of the Supplier supplying Products.
• "Delivery Address" means the address specified by the Buyer in an Order for delivery of Products.
• "Force Majeure Event" has the meaning given in clause 21.1.
• "GST" has the meaning given in the GST Act.
• "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• "Insolvency Event" means the occurrence of any of the following in relation to a party: the party becomes unable to pay its debts as they fall due; a receiver, administrator, liquidator or similar person is appointed; the party enters voluntary administration, a deed of company arrangement or a creditor scheme; the party ceases or threatens to cease business; or the party is made bankrupt.
• "Intellectual Property Rights" means all industrial and intellectual property rights throughout the world, including rights in copyright, trade marks (registered or unregistered), patents, designs, know-how and trade secrets.
• "Order" means a written or oral order placed by the Buyer requesting that the Supplier provide Products.
• "PPSA" means the Personal Property Securities Act 2009 (Cth), as amended.
• "PPSR" means the Personal Property Securities Register established under the PPSA.
• "Products" means all goods supplied or to be supplied by the Supplier under this Agreement or an accepted Order.
• "Quotation" means any quotation, estimate or proposal issued by the Supplier to the Buyer.
• "Small Business Contract" has the meaning given in section 23(4) of the ACL.
• "Supplier" means Visage Architectural Hardware Pty Ltd ACN 685 362 921.
• "Trade Account" means the trade purchasing account opened by the Supplier for the Buyer in accordance with clause 3.
• "Trade Account Acceptance Date" means the date on which the Supplier notifies the Buyer in writing that its Trade Account Application has been approved.

1.2 In this Agreement, unless the context otherwise requires:

• (a) references to a clause are to a clause of this Agreement;
• (b) the singular includes the plural and vice versa;
• (c) a reference to a party includes that party's successors and permitted assigns;
• (d) headings are for convenience only;
• (e) a reference to a statute includes all amendments and subordinate legislation;
• (f) "including" and similar expressions are not words of limitation; and
• (g) "in writing" includes email and other approved electronic means.

2.1 Commencement: This Agreement takes effect on the Trade Account Acceptance Date and governs all Quotations, Orders, supplies and invoices between the parties from that date.

2.2 Formation of Contract: Each Order submitted by the Buyer constitutes an offer to purchase Products from the Supplier. No Order is binding on the Supplier until accepted by the Supplier in writing, by issuing an order confirmation, tax invoice or delivery docket, or by commencing fulfilment. Each accepted Order forms a separate contract incorporating these Terms.

2.3 Entire Agreement and Document Priority: This Agreement, together with any approved Trade Account Application, Credit Application, any Visage policies expressly incorporated into these Terms, and any accepted Orders or Quotations, constitutes the entire agreement between the parties in relation to the supply of Products.

If there is any conflict or inconsistency between any documents governing the relationship of the parties, the following order of precedence applies from highest to lowest:

• (a) these Terms, except to the extent that an accepted Quotation or Order expressly states that a particular term varies these Terms;
• (b) any additional terms or conditions expressly stated in an accepted Quotation or Order as varying these Terms;
• (c) any terms governing an approved Credit Facility;
• (d) any approved Trade Account Application or Credit Application; and
• (e) any Visage policy expressly incorporated into these Terms.

For the avoidance of doubt, no term contained in a purchase order or other document issued by the Buyer will vary or override these Terms unless the Supplier expressly agrees to that variation in writing.

2.4 Modifications: The Supplier reserves the right to amend this Agreement by publishing an updated version on its website or notifying the Buyer in writing. The version in effect at the time an Order is accepted applies to that Order. No variation of an accepted Order is binding unless expressly agreed in writing by the Supplier. Where a proposed amendment would materially and adversely affect the rights of the Buyer under a Consumer Contract or Small Business Contract, the Supplier will provide not less than thirty (30) days prior written notice of the amendment. The Buyer may terminate this Agreement within that notice period by written notice to the Supplier, in which case the amendment will not apply, and these Terms will continue unamended until termination takes effect.

2.5 Acceptance of Terms: By submitting a Trade Account Application, placing an Order, accepting delivery of Products, or making payment, the Buyer accepts these Terms. Any terms proposed by the Buyer (including in a purchase order) are excluded and do not form part of this Agreement unless expressly agreed in writing by the Supplier.

2.6 Communication: The Supplier may rely on any communication reasonably believed to have been issued by an Authorised User. The Buyer is responsible for ensuring its contact details remain accurate and current.

2.7 Electronic communications: Both parties' consent to electronic communications, signatures and acceptance under this Agreement. Electronic submission of an Order, selection of a checkbox, use of an acceptance button or electronic signature may evidence the Buyer's intention to be bound. Nothing in this clause alters clause 2.2. An electronic Order remains an offer and is binding on the Supplier only when accepted in accordance with clause 2.2.

3.1 A Buyer wishing to open a Trade Account must complete and submit a Trade Account Application. The Supplier may request additional documentation to support the application.

3.2 The Supplier reserves the right to approve or reject any Trade Account Application at its sole discretion without providing reasons.

3.3 A Trade Account provides access to trade pricing and purchasing benefits but does not include credit facilities unless separately approved under clause 4.

3.4 The Supplier may approve a Cash Trade Account (requiring prepayment) or a Credit Trade Account (subject to clause 4).

3.5 The Buyer agrees to use the Trade Account in accordance with this Agreement. The Supplier reserves the right to suspend or close the Trade Account if the Buyer breaches this Agreement or fails to maintain satisfactory trading conduct.

4.1 The Supplier may, at its sole discretion, offer a Credit Facility to selected Trade Account holders. A Credit Facility allows the Buyer to purchase Products on credit terms rather than requiring prepayment.

4.2 Approval of a Credit Facility may require: a completed Credit Application; trade, banking or credit references; financial information; one or more Director Guarantees and Indemnities in a form acceptable to the Supplier; PPSR acknowledgements and security arrangements; and any other information reasonably required by the Supplier.

4.3 Approved Credit Facilities are subject to any credit limit, trading limit or conditions the Supplier determines and may be varied, reduced, suspended or withdrawn on not less than fourteen (14) days written notice, except where the Buyer is in default of any payment obligation or an Insolvency Event has occurred in relation to the Buyer, in which case the Supplier may act immediately without prior notice.

4.4 Unless otherwise agreed in writing, approved Credit Facilities are subject to payment terms of thirty (30) days End of Month, from the date of invoice.

4.5 The Supplier may require immediate payment, revert the Buyer to prepaid terms or suspend supply if the Buyer exceeds its credit limit, fails to pay on time or an Insolvency Event occurs.

5.1 The Buyer is responsible for maintaining the confidentiality and security of its Trade Account credentials and for all activity conducted through its Trade Account.

5.2 Any person accessing or using the Trade Account shall be deemed to have the authority of the Buyer to place Orders, incur charges and make commitments on the Buyer's behalf.

5.3 The Buyer is responsible for all Orders, transactions, instructions and activities conducted through its Trade Account by any person, whether authorised or not, unless the Buyer has complied with clause 5.5.

5.4 The Supplier is under no obligation to verify the identity, authority or approval of any person using the Trade Account credentials.

5.5 The Buyer must immediately notify the Supplier in writing of any actual or suspected unauthorised access to or use of its Trade Account.

5.6 The Buyer remains liable for all purchases, charges and obligations incurred through the Trade Account unless and until the Supplier receives written notice under clause 5.5.

5.7 The Buyer indemnifies the Supplier against any loss, cost, claim, liability or expense arising from unauthorised access to or use of the Trade Account.

6.1 Quotations: Any Quotation issued by the Supplier:

• (a) is an estimate only and is not an offer or obligation to supply;
• (b) is exclusive of delivery costs;
• (c) is valid for thirty (30) days from the date of issue unless withdrawn by the Supplier beforehand;
• (d) contains a price on the basis that Products are collected or delivered during Business Hours, unless otherwise stated; and
• (e) may include additional terms or conditions that supplement these Terms. Quotations provided orally are subject to written confirmation.

6.2 Order Placement: The Buyer may place Orders through the Supplier's website, customer portal, email or any other ordering channel notified by the Supplier from time to time.

6.3 Acceptance: All Orders are subject to acceptance by the Supplier. The Supplier may accept or reject any Order in its discretion, including where there are pricing errors, stock availability issues or suspected fraud.

6.4 Pricing: Prices for Products will be those applicable at the time the Order is accepted by the Supplier unless otherwise stated in a written Quotation.

6.5 Supply and Fulfilment: The Supplier will use reasonable endeavours to supply accepted Orders in accordance with estimated timeframes. Timeframes are estimates only and are not of the essence.

6.6 Modification and Cancellation: No modification, cancellation or variation of an accepted Order is effective unless expressly agreed in writing by the Supplier. The Buyer may be liable for costs incurred by the Supplier up to the point of cancellation.

6.7 Backorders: Where a Product is unavailable, the Supplier may:

• (a) partially fulfil the Order;
• (b) place the unavailable Product on backorder;
• (c) offer an alternative Product; or
• (d) cancel the affected portion of the Order and refund any amount paid.

6.8 Particular Purpose: If the Buyer requires any Products for a particular purpose, the Buyer must advise the Supplier of that purpose prior to placing an Order and must obtain a written assurance from the Supplier that the Products will meet those requirements. If the Buyer does not advise the Supplier of its requirements, or if the Supplier does not expressly warrant in writing that the Products are fit for the Buyer's particular purpose, the Buyer agrees that it did not rely on the Supplier's skill or judgment in relation to the fitness of the Products for that purpose.

7.1 Pricing: Prices are as set out in the relevant Order confirmation, Quotation or the Supplier's prevailing price list at the time of Order acceptance.

7.2 GST: All prices are inclusive of GST unless expressly stated otherwise. The Supplier will issue a valid Tax Invoice for each taxable supply.

7.3 Invoice: The Supplier will issue an invoice to the Buyer for each Order detailing the Products supplied, pricing, GST and payment due date.

7.4 Payment Terms:

• 7.4.1 Cash Trade Accounts must pay in full prior to dispatch or collection.
• 7.4.2 Credit Trade Accounts must pay in accordance with their approved Credit Facility terms.
• 7.4.3 In the event of late payment, the Supplier reserves the right to charge interest in accordance with clause 8.6.
• 7.4.4 Custom and Special Finish Orders may, at the Supplier's discretion, require a deposit of up to thirty percent (30%) of the Order value before production commences.
• 7.4.5 Payment is to be made via the Supplier's website portal. Other payment methods may be accepted at the Supplier's discretion.
• 7.4.6 Accounts may be placed on stop supply without notice if payment is not received by the due date.
• 7.4.7 The Supplier may charge a payment processing surcharge for certain payment methods equal to the Supplier's reasonable cost of acceptance for that payment type. Any applicable surcharge will be disclosed at the time of payment.

7.5 Price Variations:

• 7.5.1 The Supplier reserves the right to vary the price or rates specified in an accepted Order if:
  • (a) there is a movement in the cost of supplying the Products, including any increase in manufacturing, procurement or transportation costs, foreign exchange fluctuation, currency regulation, duties or significant increases in the cost of labour or materials;
  • (b) additional Products are required due to the discovery of hidden or unforeseen issues following commencement of fulfilment;
  • (c) the Products specified in the Order are varied from those in the Quotation; or
  • (d) the Buyer requests that Products be delivered outside Business Hours, requests different Products, or requests that the Supplier delay provision of Products for sixty (60) days or more.
• 7.5.2 Where the Supplier varies the price pursuant to clause 7.5.1, it will notify the Buyer of the new price. The Buyer may, within seven (7) days of receiving that notice, reject the new price and terminate the contract for supply of those Products without further cost or penalty. If the Buyer does not reject the new price within that period, the Buyer is taken to have accepted it. Any termination under this clause is without prejudice to Products already supplied.
• 7.5.3 All price variations requested by the Buyer must be agreed in writing by the Supplier prior to supply and will be invoiced at the rate specified in the Quotation, as specifically re-quoted, or in accordance with the Supplier's current prevailing rates, at the Supplier's discretion.

7.6 No Set-Off: The Buyer shall not be entitled to withhold payment of any amount due to the Supplier by reason of any set-off, counter-claim, abatement or other deduction, whether or not agreed or awarded by any court.

7.7 The Buyer acknowledges that payment terms are material terms of this Agreement and that any breach of payment obligations entitles the Supplier to exercise all remedies available under this Agreement and at law.

8.1 The provisions in this clause apply to all Credit Trade Accounts and any other arrangements where the Supplier extends credit to the Buyer.

8.2 Security Interest: To secure all payment obligations under this Agreement, the Buyer grants the Supplier a security interest in all Products supplied (present and after-acquired) until title passes. The security interest extends to all proceeds of sale of the Products and any accession to the Products. The Buyer holds the Products as the Supplier's fiduciary agent and bailee until title passes.

8.3 PPSR Registration: The Supplier reserves the right to register its security interest on the PPSR. The Buyer must do all things necessary to perfect and maintain the Supplier's security interest, including providing necessary information and signing documents.

8.4 The Buyer:

• 8.4.1 waives its right to receive a copy of any verification statement under section 157 of the PPSA; and
• 8.4.2 agrees that, to the extent permitted by the PPSA, the following sections do not apply and are hereby contracted out of: sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA;
• 8.4.3 waives its right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d) and 132(4) of the PPSA;
• 8.4.4 agrees that the Supplier need not disclose information of the kind referred to in section 275(1) of the PPSA unless required by law; and
• 8.4.5 agrees that where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
• 8.4.6 must not, without the Supplier's prior written consent, register a financing change statement in respect of a security interest in the Supplier's favour or create or purport to create any security interest in the Products in favour of any third party.

8.5 If requested by the Supplier, the Buyer must reimburse the Supplier for any PPSR registration costs, including registration fees.

8.6 Default Interest: In the event of late or defaulted payment, the Supplier may:

• (a) charge interest on the overdue amount at the rate of two percent (2%) per month (or part thereof);
• (b) recover all reasonable debt collection costs, mercantile agent fees and legal costs on a full indemnity basis; and
• (c) exercise all rights available under the PPSA and other applicable laws, including seizure and sale of the Products. The Buyer acknowledges that the default interest rate specified in this clause represents a genuine pre-estimate of the Supplier's cost of funding and loss arising from late payment and does not constitute a penalty.

8.7 Continuing Obligations: The obligations in this clause continue until all amounts owing to the Supplier have been paid in full.

9.1 Delivery: The Supplier will deliver Products to the Delivery Address specified by the Buyer in the Order or as otherwise agreed in writing. Unless otherwise agreed, the Buyer is responsible for all reasonable freight, delivery, cartage and insurance costs.

9.2 Risk: Risk of loss or damage to Products passes to the Buyer upon delivery to the Delivery Address, or upon collection by the Buyer or the Buyer's nominated carrier, whichever is earlier.

9.3 Time for Delivery: Unless the contract for supply expressly states otherwise, time for delivery is not of the essence and any timeframe or date for delivery is an estimate only.

9.4 Delivery Docket: The Buyer agrees to sign the Supplier's delivery docket or consignment note (or that of the Supplier's nominated carrier) as confirmation that the Buyer has received the Products in apparent good order and condition in the quantity ordered.

9.5 Site Access and Safety: It is the Buyer's responsibility to provide suitable, practical and safe means of access to the agreed place for delivery. If the delivery location is deemed unsuitable or unsafe in the delivery driver's reasonable opinion, the driver may:

• (a) refuse to deliver and return the Products to the point of dispatch, in which case an additional delivery fee will apply to any subsequent delivery attempt; or
• (b) deliver the Products to the nearest location where delivery can be safely effected.

9.6 Unattended Delivery: If the Buyer authorises delivery to an unattended location or outside the agreed place for delivery, the Supplier may deliver as requested and all risk in the Products passes to the Buyer from the time of such delivery.

9.7 Deferred Delivery: If delivery or collection is deferred at the Buyer's request or because the Buyer is unable or unwilling to accept delivery (other than because the Products do not conform to the contract for supply), the Buyer will pay:

• (a) the Supplier's reasonable daily storage charges, accruing until the Products are delivered or collected; and
• (b) any costs associated with re-delivery where the Supplier or its carrier has previously attempted delivery.

9.8 Partial Delivery: The Supplier may, depending on availability, deliver Products in one or more lots and invoice the Buyer on a pro-rata basis.

9.9 Third-Party Delivery: Where the Buyer requests that the Supplier deliver Products to a third party:

• (a) the Buyer warrants that the third party will make all arrangements necessary to take delivery, including providing a satisfactory Authority to Leave if required;
• (b) the Buyer is liable for all costs arising from any act or omission of the third party that prevents delivery; and
• (c) delivery or non-delivery to the third party is without prejudice to the parties' rights under this Agreement.

9.10 Title: Notwithstanding delivery and passing of risk, title in the Products does not pass to the Buyer until the Supplier has received payment in full (in cash or cleared funds) for those Products and all other amounts owing by the Buyer to the Supplier.

• 9.10.1 Until title passes, the Buyer holds the Products as the Supplier's fiduciary agent and bailee and must keep the Products clearly identifiable as the Supplier's property, stored separately from the Buyer's own goods.
• 9.10.2 Until title passes, the Buyer must not mix the Products with similar goods.
• 9.10.3 Until title passes, the Buyer must not resell, dispose of or encumber the Products without the Supplier's prior written consent, except where authorised to sell the Products in the ordinary course of its business, in which case the Buyer sells the Products as the Supplier's agent and on market terms.
• 9.10.4 Where the Buyer is authorised to resell the Products, the Buyer must hold the proceeds of sale on trust for the Supplier absolutely until all amounts owing to the Supplier have been paid in full.
• 9.10.5 The Supplier is entitled, while title in the Products remains with it, to enter upon any premises the Buyer occupies to inspect the Products and, where the Buyer is in default of any payment obligation, to repossess any Products in the Buyer's possession, custody or control. The Buyer agrees that such entry does not give rise to any claim for trespass against the Supplier or its officers, employees or agents.
• 9.10.6 Where the Supplier has retaken Products into its possession, it may sell or otherwise deal with those Products and, if necessary, sell any Products bearing the Buyer's name or trade mark. The Buyer hereby grants the Supplier an irrevocable license to do all things necessary to sell those Products.

9.11 The retention of title provisions in this clause are in addition to, and without prejudice to, the Supplier's security interest under clause 8.

10.1 The Supplier handles all import procedures for Products, including obtaining necessary permits, licenses and clearances, and bearing all applicable import duties, customs fees and clearance charges, unless otherwise agreed in writing.

10.2 The Buyer is responsible for compliance with any end-use, re-export or other regulatory requirements applicable to the Products.

11.1 Inspection: The Buyer must, within seven (7) Business Days of delivery:

• (a) inspect all Products for any visible defects, non-conformance or shortages;
• (b) give the Supplier written notice, with particulars, of any claim that the Products are not in accordance with the contract for supply; and
• (c) at the Supplier's request, provide photographic evidence and preserve the Products in the condition delivered pending the Supplier's inspection.

11.2 Non-Delivery: The Buyer must notify the Supplier in writing of any claim for non-delivery within seven (7) Business Days of the date of the relevant invoice.

11.3 Where the contract for supply is not a Consumer Contract or Small Business Contract and the Buyer fails to notify the Supplier in accordance with clauses 11.1 and 11.2, then, to the extent permitted by law, the Products are deemed to have been delivered in good condition and in accordance with the contract for supply.

11.4 Where the contract for supply is a Consumer Contract or Small Business Contract and the Buyer fails to notify the Supplier in accordance with clauses 11.1 and 11.2, then, to the extent permitted by law, the Buyer waives its right to reject the Products. Nothing in this clause affects any rights the Buyer may have under the ACL that cannot be lawfully excluded.

11.5 The Supplier will review any claim submitted and, if validated, will arrange for repair, replacement or credit at its election.

11.6 The Supplier will bear any reasonable costs associated with the return of Products found to be genuinely defective or incorrectly supplied.

12.1 The Buyer must inspect Products immediately upon receipt. In the event that Products are found to be defective or damaged, the Buyer must notify the Supplier in accordance with clause 11.

12.2 If a claim is validated, the Supplier will elect to:

• (a) repair the defective Product;
• (b) replace the defective Product; or
• (c) provide a full or partial credit or refund equivalent to the purchase price of the defective Product.

12.3 Products may only be returned with the Supplier's prior written consent. Approved returns may be subject to a reasonable restocking fee. Freight, delivery and handling charges are non-refundable unless otherwise required by the ACL.

12.4 Returns on Special Order Products are subject to the Visage Special Products Order Policy.

12.5 Change-of-Mind Returns: At the Supplier's discretion, the Supplier may accept the return of Products where the Buyer has changed its mind, provided:

• (a) the Buyer notifies the Supplier within thirty (30) days of delivery;
• (b) the Buyer reimburses the Supplier's reasonable costs incurred in connection with the return;
• (c) the Products are in substantially the same condition as delivered; and
• (d) the Products were not custom-made, specifically produced or procured at the Buyer's request.

12.6 The Buyer indemnifies the Supplier against any damage occurring to Products in return transit. The Buyer should ensure that returned Products are appropriately insured against damage in transit.

13.1 Product descriptions, specifications, dimensions, images and finish representations are indicative only and variations may occur due to screen settings, photography, lighting, manufacturing processes, natural materials, hand-applied finishes or production batches.

13.2 Many Products incorporate natural materials, artisan techniques or specialist finishes. Minor variations in colour, tone, texture or appearance are inherent characteristics and do not constitute a defect.

13.3 Where appearance is a critical consideration, the Buyer is encouraged to obtain samples before placing an Order.

13.4 Variations arising from acceptable manufacturing tolerances, natural materials or supplier-provided specifications do not constitute a defect, provided the Products otherwise perform their intended function.

14.1 Certain Products feature living finishes, natural materials or hand-applied finishes designed to change in appearance over time. This is an inherent characteristic of such Products.

14.2 Variations in colour, tone, patina, texture, oxidation, tarnishing, grain or surface appearance resulting from ageing, environmental conditions, handling, use or maintenance are characteristic of these Products and do not constitute a defect.

14.3 Unless otherwise required by the ACL, natural ageing and other changes associated with living finishes or natural materials do not give rise to a warranty or product claim against the Supplier.

15.1 Statutory Warranties: As required by the ACL, statutory guarantees apply to all Products supplied by the Supplier. The Supplier does not exclude, restrict or modify any right or remedy available to the Buyer under the ACL.

15.2 Commercial Limitation: This Agreement is entered into between commercial trade account holders. To the maximum extent permitted by law, to the extent the Supplier has any liability for failure to comply with a guarantee under the ACL (other than guarantees under sections 51, 52 or 53 of the ACL), the Supplier's liability is limited (at its election) to:

• (a) the replacement of the Products or supply of equivalent Products;
• (b) the repair of the Products;
• (c) the payment of the cost of replacing the Products or acquiring equivalent Products; or
• (d) the payment of the cost of having the Products repaired.

15.3 Manufacturer's Warranty: Certain Products may be accompanied by a manufacturer's warranty. The Supplier makes no representations regarding the scope or enforceability of any manufacturer's warranty.

15.4 Installation: Installation of any Product must be carried out by a suitably qualified tradesperson. Improper installation may void any manufacturer's warranty.

15.5 Any claim regarding product defects or warranties must be made in accordance with clause 11.

16.1 Subject to clause 16.4, the Supplier's total aggregate liability to the Buyer is limited to the total amount paid by the Buyer for the Products giving rise to the claim in the twelve (12) months immediately preceding the event giving rise to the claim.

16.2 Subject to clauses 16.4 and 16.5, and to the extent permitted by law, the Supplier is not liable for any Consequential Loss (as defined in clause 1.1) or any indirect, incidental, special, punitive, exemplary or consequential loss or damage of any kind, however caused. For the avoidance of doubt, this exclusion does not apply to the extent it would exclude or limit any right or remedy available to the Buyer under the ACL that cannot lawfully be excluded or limited.

16.3 Any claim by the Buyer against the Supplier must be notified in writing within thirty (30) days of the event giving rise to the claim, failing which the Buyer waives any right to make that claim to the extent permitted by law.

16.4 Nothing in this Agreement excludes, restricts or modifies:

• (a) any right or remedy of the Buyer under the ACL that cannot be lawfully excluded or limited;
• (b) the Supplier's liability for personal injury or death caused by the Supplier's negligence; or
• (c) any other liability that cannot be excluded by law.

16.5 Where the contract for supply is not a Consumer Contract or Small Business Contract, to the extent permitted by law, the Supplier's liability (if any) for failure to comply with a guarantee under the ACL (other than sections 51, 52 or 53) is limited (at the Supplier's election) to:

• (a) in the case of supply of goods:
  • (i) repair or replacement of the goods; or
  • (ii) payment of the cost of repair or replacement; or
• (b) in the case of supply of services:
  • (i) re-supply of the services; or
  • (ii) payment of the cost of equivalent services.

17.1 The Buyer indemnifies and must keep indemnified the Supplier, its directors, officers, employees and agents against any loss, cost, claim, liability or expense (including reasonable legal costs on a full indemnity basis) arising from or in connection with:

• (a) any breach of this Agreement by the Buyer;
• (b) any negligent, unlawful or wrongful act or omission of the Buyer;
• (c) the handling, storage, installation, modification, misuse or use of Products other than in accordance with manufacturer instructions or applicable law;
• (d) any claim by a third party arising from the Buyer's resale, supply, installation or use of the Products; or
• (e) any infringement of intellectual property rights arising from specifications, designs, drawings, instructions or other information provided by the Buyer. Nothing in this clause requires the Buyer under a Consumer Contract or Small Business Contract to indemnify the Supplier in respect of any liability that the Supplier cannot lawfully require the Buyer to bear under the ACL.

17.2 This indemnity is reduced to the extent that any claim, loss, damage, liability, cost or expense is caused by the Supplier's negligence, fraud or willful misconduct, or a breach of the Supplier's obligations.

17.3 If the Buyer defaults in the performance of its obligations under this Agreement:

• (a) the Supplier will take steps to mitigate its loss and act reasonably in relation to the default;
• (b) the Supplier will give the Buyer written notice requesting payment for loss and damage and requesting that the Buyer remedy any breach within a reasonable time; and
• (c) if that demand is not met, the Buyer must indemnify the Supplier in respect of all loss, damage and costs (including collection costs, bank dishonour fees and legal costs on an indemnity basis) arising from the default.

17.4 The indemnities in this clause survive termination of this Agreement.

18.1 The Supplier retains all right, title and interest in and to all Intellectual Property Rights relating to the Products, catalogues, specifications, imagery, trade marks and any other materials.

18.2 The Buyer does not acquire any rights to the Supplier's intellectual property by entering into this Agreement, except as expressly set out herein or agreed in writing.

18.3 The Buyer must not reproduce, modify, distribute, sublicense or create derivative works from any of the Supplier's Intellectual Property Rights without prior written consent.

18.4 If the Buyer provides any intellectual property to the Supplier for use in connection with fulfilling an Order, the Buyer warrants that it holds the necessary rights to provide such materials and that use by the Supplier will not infringe any third party's Intellectual Property Rights.

18.5 The Buyer warrants and represents to the Supplier that all Customer Material:

• (a) is accurate and correct; and
• (b) will not infringe the Intellectual Property Rights of any third party.

18.6 The Buyer grants the Supplier a non-exclusive, non-transferable, royalty-free, perpetual, worldwide license to use all Customer Material for:

• (a) the purposes of supplying the Products to the Buyer; and
• (b) marketing and advertising purposes, including use of project imagery, installations and outcomes in the Supplier's promotional materials, website, social media, catalogue and other marketing channels. The Supplier will not use the Buyer's name or logo in marketing materials without the Buyer's prior written consent.

18.7 The Buyer may withdraw consent to marketing use of Customer Material at any time by written notice to the Supplier, which takes effect within a reasonable time and does not affect any prior use.

19.1 Each party must keep all Confidential Information of the other party strictly confidential and must not use it for any purpose other than to perform its obligations under this Agreement.

19.2 The obligations of confidentiality do not apply to information that:

• (a) is or becomes publicly known through no breach of this Agreement;
• (b) was already in the receiving party's possession prior to disclosure;
• (c) is received from a third party without breach of any obligation of confidentiality; or
• (d) is independently developed by the receiving party without reliance on the Confidential Information.

19.3 Upon termination, or upon written request, the receiving party must promptly return or destroy all Confidential Information of the disclosing party.

19.4 All obligations of confidentiality continue for five (5) years following termination of this Agreement.

20.1 The Supplier collects, holds, uses and discloses personal information in accordance with its Privacy Policy, available at Privacy Policy.

20.2 Each party agrees to comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to any personal information handled in connection with this Agreement.

20.3 The Buyer warrants that it has obtained all necessary consents for the provision of any personal information to the Supplier and will promptly notify the Supplier if it becomes aware of any unauthorised access to or disclosure of personal information.

21.1 A "Force Majeure Event" means an event beyond the reasonable control of the affected party, including acts of God, natural disasters, pandemic, government action, industrial action, war, terrorism, supply chain disruption or carrier delay.

21.2 Neither party will be liable for failure or delay caused by a Force Majeure Event, provided the affected party:

• (a) notifies the other party in writing as soon as practicable;
• (b) uses all reasonable endeavours to mitigate the effects; and
• (c) keeps the other party informed of developments.

21.3 If a Force Majeure Event continues for more than thirty (30) days, either party may terminate this Agreement on written notice. Financial hardship, inability to obtain finance or changes in market conditions do not constitute Force Majeure Events.

22.1 If the Buyer is the trustee of a trust (whether disclosed to the Supplier or not), the Buyer warrants to the Supplier that:

• (a) the Buyer enters into this Agreement in both its capacity as trustee and in its personal capacity;
• (b) the Buyer has the right to be reasonably indemnified out of the trust assets for liabilities incurred under this Agreement;
• (c) the Buyer has the power under the relevant trust deed to enter into this Agreement and to grant the security interests contemplated by it; and
• (d) the Buyer will not retire as trustee of the trust, nor appoint any new or additional trustee, without first notifying the Supplier in writing and, where a Credit Facility is in place, ensuring the new or additional trustee executes an agreement in terms substantially the same as this Agreement.

22.2 The Buyer must provide the Supplier with a true and complete copy of the trust deed upon request.

23.1 This Agreement commences on the Trade Account Acceptance Date and continues until terminated in accordance with this clause.

23.2 Either party may terminate this Agreement by giving not less than thirty (30) days' written notice to the other party.

23.3 The Supplier may terminate this Agreement immediately on written notice if:

• (a) the Buyer fails to pay any amount due within five (5) Business Days after the due date;
• (b) the Buyer breaches any material term and, where capable of remedy, fails to remedy within seven (7) days of notice;
• (c) an Insolvency Event occurs in relation to the Buyer;
• (d) the Buyer ceases or threatens to cease carrying on its business; or
• (e) the Buyer undergoes a change of ownership or control without prior written notification to the Supplier.

23.4 The Buyer may terminate this Agreement immediately on written notice to the Supplier if:

• (a) an Insolvency Event occurs in relation to the Supplier; or
• (b) the Supplier commits a material breach of this Agreement and, where capable of remedy, fails to remedy that breach within thirty (30) days after the Buyer gives written notice requiring the breach to be remedied.

23.5 Upon termination:

• (a) all amounts owed by the Buyer become immediately due and payable;
• (b) the Buyer must promptly return all Products for which title has not passed; and
• (c) clauses 8, 9.10, 16, 17, 18, 18A, 19, 22 and 24 survive termination.

24.1 Upon termination, whether through default, insolvency or otherwise:

• (a) all outstanding invoices become immediately due and payable;
• (b) the Buyer must promptly return all Products for which title has not passed;
• (c) the Buyer must cease all use of the Supplier's Intellectual Property Rights and Confidential Information;
• (d) the Buyer bears all costs of recovery and return of Products unless otherwise agreed;
• (e) any licenses or rights granted to the Buyer terminate immediately; and
• (f) each party must promptly return or destroy all Confidential Information of the other party.

24.2 The Supplier retains all rights and remedies at law or in equity. Termination does not affect rights and obligations that accrued prior to the date of termination.

25.1 The parties must use reasonable endeavours to resolve any dispute arising out of or relating to this Agreement by negotiation between authorised representatives within thirty (30) days of written notice of a dispute.

25.2 If the dispute is not resolved within that period, either party may refer the dispute to mediation. The cost of mediation shall be shared equally. Each party must attend the mediation with a representative who has authority to settle the dispute.

25.3 If the dispute is not resolved within thirty (30) days of referral to mediation, either party may commence legal proceedings.

25.4 Nothing in this clause prevents either party from seeking urgent injunctive or other interlocutory relief.

25.5 Both parties must continue to perform their respective obligations during the dispute resolution process.

26.1 Any notice, demand, claim, consent, approval or other communication given under this Agreement must be in writing and delivered by hand, post, courier or email.

26.2 Notices to the Supplier must be sent to:

Visage Architectural Hardware Pty Ltd. 81-83 Campbell Street, Surry Hills NSW 2010. info@visageah.com.au Get in touch.

26.3 Notices to the Buyer may be sent to the contact details provided in the Trade Account Application or otherwise updated by the Buyer in writing.

26.4 A notice is deemed received:

• (a) if delivered personally, on delivery;
• (b) if sent by post, on the third Business Day after dispatch; or
• (c) if sent by email, at the time of transmission unless a delivery failure notification is received.

26.5 A notice received after 5:00 pm or on a non-Business Day is taken to be received at 9:00 am on the next Business Day.

26.6 Each party must notify the other of any change to its contact details.

26.7 This clause is subject to any applicable law requiring a different method of service.

27.1 This Agreement is governed by and must be construed in accordance with the laws of New South Wales.

27.2 Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales (and any appellate courts) in respect of any dispute arising out of or in connection with this Agreement.

27.3 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

28.1 Assignment: The Buyer must not assign, transfer, novate or otherwise deal with any of its rights or obligations under this Agreement without the Supplier's prior written consent. The Supplier may assign its rights without the Buyer's consent.

28.2 Waiver: A failure or delay by the Supplier in exercising any right, power or remedy does not operate as a waiver. A single or partial exercise does not preclude further exercise.

28.3 Severability: If any provision is held to be invalid, illegal or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if not possible, will be severed. The remaining provisions are not affected.

28.4 Entire Agreement: This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior arrangements.

28.5 No Partnership or Agency: Nothing in this Agreement creates a partnership, joint venture, employment relationship or agency between the parties.

28.6 Further Assurance: Each party must do all things and execute all documents reasonably required to give full effect to this Agreement.

28.7 Costs: Each party bears its own legal costs incurred in connection with the negotiation, preparation and execution of this Agreement, unless otherwise agreed.

28.8 Counterparts: This Agreement may be executed in counterparts (including by electronic signature or acceptance), each of which is an original and which together constitute one instrument.

Visage Architectural Hardware Pty Ltd ACN 685 362 921 81‑83 Campbell Street, Surry Hills NSW 2010 info@visageah.com.au | www.visagearchitectural.com.au

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