1. Definitions and Interpretation

1.1 In these Conditions:

• • ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
  • Altered Goods means any Goods which have been altered by or on behalf of the Customer by subjecting the Goods to any manufacturing process or incorporating the Goods into another product.
  • Company means IBA Textiles Pty Ltd ACN 161422359 trading as IBA Protective Technologies and IBA Firefly.
  • Conditions means these Conditions of Sale, as amended or updated from time to time by the Company.
  • Confidential Information means any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential or if the information could reasonably be supposed to be confidential.
  • Consumer is as defined in the ACL and that definition is used in determining if the Customer is a consumer for the purposes of the Contract.
  • Contract means any contract between the Company and the Customer for the supply of Goods, incorporating these Conditions.
  • Customer means any person, firm, company, or other organization, jointly and severally if more than one, who is the addressee of the Company’s quotation or acceptance of an order issued by the Company. This includes any successor-in-title of the Customer and any company or entity arising (wholly or partly) by way of any merger, amalgamation, reorganization, or acquisition of the Customer.
  • Delivery Point means the place where delivery of the Goods will occur under clause 6, including, but not limited to, the Customer’s place of business.
  • Goods means any goods or materials agreed in the Contract to be supplied by the Company to the Customer (including any part or parts of them).
  • Input Material means any documents, plans, drawings, designs, or other materials, and any data or other information provided by the Customer to the Company relating to the Goods.
  • Intellectual Property Rights means any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know-how, trade secrets, rights in software, rights in the nature of unfair competition, and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
  • Output Material means any documents, plans, drawings, designs, or other materials, and any data or other information provided by the Company to the Customer relating to the Goods.
  • PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.

1.2 In these Conditions, unless the contrary intention appears:

(a) a reference to a “person” (including a party) includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency.

(b) a reference to a “clause” is to a clause of these Conditions.

(c) clause headings shall not affect the interpretation of these Conditions.

(d) any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.

(e) the words “include”, “including”, or “such as” are not used as, nor are they to be interpreted as words of limitation.

(f) a reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application, or re-enactment and includes any subordinate legislation for the time being in force made under it.

(g) words in the singular include the plural and in the plural include the singular.

1. Application of Conditions

2.1 Unless otherwise agreed by the Company in writing, the Conditions apply exclusively to every Contract and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).

2.2 Any typographical, clerical, or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice, or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

2.3 The Company may vary or amend these Conditions by written notice to the Customer at any time. Any variations or amendments will apply to quotes or orders placed after the notice date.

2.4 Any quotation provided by the Company to the Customer for the proposed supply of Goods is:

(a) valid for 30 days provided that the Company has not previously withdrawn it;

(b) an invitation to treat only; and

(c) only valid if in writing.

2.5 The Conditions may include additional terms in the Company’s quotation, which take priority over the Conditions to the extent of any inconsistency.

2.6 Any representations about any Goods shall have no effect unless expressly agreed in writing and signed by an authorized signatory of the Company.

3. Orders

3.1 The placing of an order following any quotation or other indication of price and delivery shall not be binding on the Company unless and until accepted by the Company in writing or by electronic means, or until the Company provides the Goods to the Customer.

3.2 The Company may refuse any order placed by the Customer.

3.3 The Customer must ensure the terms of its order, any Input Material, and/or any applicable specifications or requirements are complete and accurate.

3.4 Once accepted by the Company, the Customer’s order cannot be cancelled without the Company’s express agreement and on terms the Company may stipulate.

3.5 Once accepted by the Company, the Customer cannot vary, alter, or defer its order unless the Company agrees in writing. If any changes are made, the Customer must indemnify the Company against all losses, including lost profits and costs (like those for labor and materials used).

3.6 The quantity and description of the Goods will be as detailed in the Company’s written acceptance of the Customer’s order.

3.7 If the Company cannot deliver the Goods, it may cancel the accepted order by notifying the Customer in writing. The Company will then refund any payments the Customer made for the undelivered Goods.

3.8 All samples, drawings, descriptive materials, specifications, and advertisements provided by the Company are for giving a rough idea of the Goods they describe. They won’t be part of the Contract, and Goods aren’t sold based on these samples.

3.9 The specification for the Goods will be the Company’s standard specification unless otherwise stated in the Company’s quotation or the Customer’s accepted order.

4. Obligations of the Customer

4.1 The Customer must give the Company all necessary information, cooperation, and support for the Company to fulfill its obligations.

4.2 If Goods need to be manufactured, ordered, designed, built, configured, altered, adapted, or subjected to any process based on Input Material, specifications, or instructions from the Customer, then the Customer must hold the Company harmless. The Customer also indemnifies the Company against all losses and costs arising from:

(a) Any infringement of Intellectual Property Rights resulting from the Company using the submitted Input Material or instructions.

(b) Any breach of safety or other statutory requirements by the submitted Input Material or instructions.

(c) Any defect in the Goods resulting from the submitted design.

5. Price

5.1 Unless stated otherwise, quoted prices will exclude GST, which will be charged at the rate applicable on the Goods’ dispatch date.

5.2 Unless agreed upon in writing between the Customer and the Company, all Goods’ prices are given on an ex-works basis, and the Customer is liable to cover the Company’s transport, packaging, and insurance charges.

5.3 Any price reduction or waiver is valid only if the Company provides written agreement.

5.4 If the Customer requests a variation to the Contract, the Company may adjust the price to account for the variation. Upon receiving notice, the Customer can either:

(a) Accept the new price and continue with the varied Contract. (b) Decline the new price and withdraw the request for variation.

5.5 Prices for the Goods are based on conditions available when given and are subject to change until confirmed in writing by the Company upon accepting the Customer’s order.

5.6 The Company reserves the right to adjust the price of the Goods to reflect any unforeseen cost increases, including but not limited to foreign exchange fluctuations, increased labor/material costs, or changes in delivery dates or quantities requested by the Customer.

5.7 If the ACL applies and there’s a change in costs related to the Goods, the Company may adjust its price to reflect the change. Upon notice, the Customer can either:

(a) Accept the new price and continue with the Contract. (b) Decline the new price and cancel the Contract as it pertains to the specific variation.

6. Delivery

6.1 The Company will deliver the Goods to the Customer at the specified Delivery Point.

6.2 The Customer covers all delivery-associated costs, including freight, insurance, and other charges from the dispatch point to the delivery point.

6.3 The Company may choose to deliver the Goods in separate instalments. Each instalment will be invoiced and paid according to the Contract’s provisions.

6.4 Each instalment is considered a separate Contract. Cancellation or termination of one instalment Contract doesn’t give the Customer the right to cancel or repudiate any other Contract or instalment.

6.5 The Customer holds the Company harmless against any losses or damages incurred during delivery, unless the Customer is a consumer and the Company hasn’t exercised due care and skill.

6.6 Any provided delivery date for the Goods is an estimate. The Company is not liable for any delays.

6.7 The Company will make reasonable efforts to deliver Goods as per the Customer’s requirements but is not liable for any failure to meet estimated delivery dates.

6.8 Unless otherwise agreed upon in writing, the Delivery Point will be the Customer’s primary place of business.

6.9 At the Delivery Point, the Customer must provide the necessary equipment and manual labor to unload the Goods.

6.10 If delivery access is difficult or the Delivery Point is unreasonably far from a feasible vehicular access point, the Company may levy an extra delivery charge.

6.11 If the Customer fails to accept delivery or if the Company can’t deliver on time due to the Customer’s inadequacies, the Company can:

(a) Consider the Goods delivered and transfer the risk to the Customer. (b) Store the Goods and charge the Customer for related costs. (c) Sell the Goods at the best available price and charge the Customer for any shortfall.

7. Confidential Information and Intellectual Property Rights

7.1 During the Company’s provision of Goods, both parties may disclose Confidential Information. Both parties commit to keeping this information confidential.

7.2 Neither party will use the other’s Confidential Information for any purpose other than to fulfill their contractual obligations.

7.3 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and any Goods supplied. The Customer agrees not to contest this ownership.

7.4 The Customer assigns to the Company any Intellectual Property Rights in any modifications to the Company’s Intellectual Property that the Customer may create or acquire.

8. Payment

• • 8.1 Subject only to any special terms agreed in writing between the Company and the Customer, the Company shall be entitled to invoice the Customer for the price of the Goods on or before the agreed date for delivery of the Goods stated in the Company’s written acceptance of the Customer’s order.
  • 8.2 Subject to clause 8.3, payment must be made in advance of delivery upon submission by the Company of a pro-forma invoice.
  • 8.3 Provided that the Customer has produced references which in the Company’s opinion are satisfactory then, subject to clause 8.3, full payment for the Goods must be made within 30 days of the date of the Company’s invoice. The Company reserves the right to require payment in full on delivery of the Goods.
  • 8.4 Payment terms may be revoked or amended at the Company’s sole discretion immediately upon giving the Customer written notice.
  • 8.5 The time of payment of the price shall be of the essence of the Contract.
  • 8.6 All payments must be made without any deduction, withholding, or set-off.

9. Payment Default

• • 9.1 If the Customer defaults in payment by the due date of any amount payable to the Company, then all money which would become payable by the Customer to the Company at a later date on any account becomes immediately due and payable without the requirement of any notice to the Customer, and the Company may, without prejudice to any of its other accrued or contingent rights:(a) charge interest at the rate of five percent (5%) per annum above National Australia Bank Limited (NAB) base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);(b) charge the Customer for, and the Customer must indemnify the Company against, all costs and expenses (including without limitation all legal costs and expenses) incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;(c) cease or suspend any warranty for the Goods or any other goods supplied by the Company to the Customer, whether or not they have been paid for;(d) appropriate any payment made by the Customer to such of the Goods supplied by the Company as the Company may think fit;(e) set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;(f) by written notice, terminate the Contract, or suspend or cancel any future delivery of Goods;(g) cancel any discount (if any) offered to the Customer; and(h) if the Customer has an approved credit account, withdraw or reduce its credit limit or bring forward its due date for payment without notice.
  • 9.2 Subject to any applicable statutory stay of proceedings, and without prejudice to the Company’s other remedies at law, clauses 9.1 (c) and 9.1 (f) may also be relied upon, at the Customer’s option:(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
  • 9.3 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

10. No Set Off

• • 10.1 The Customer is not entitled to:(a) withhold payment of any amount payable under the Contract to the Company because of any disputed claim; nor(b) set-off against any amount payable under the Contract any monies which are not then presently payable by the Company or in relation to which the Company disputes liability.

11. Passing Of Property

• • 11.1 Until the Company receives full payment in cleared funds for all Goods supplied by it to the Customer, as well as all other amounts owing to the Company by the Customer:(a) title and property in all Goods remain vested in the Company and do not pass to the Customer;(b) the Customer must hold the Goods as fiduciary bailee and agent for the Company;(c) the Customer must keep the Goods separate from its other goods and maintain the Company’s labelling and packaging;(d) the Customer must hold the proceeds of sale of the Goods on trust for the Company in a separate account with a bank to whom the Customer has not given security; however, failure to do so will not affect the Customer’s obligation as a trustee;(e) in addition to its rights under the PPSA, the Company may, without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Company. For this purpose, the Customer irrevocably licenses the Company to enter such premises and also indemnifies the Company from and against all costs, claims, demands, or actions by any party arising from such action.
  • 11.2 The Company will exercise its right of entry (including the use and extent of force) in accordance with applicable laws.
  • 11.3 The Company will own any Altered Goods jointly with the owners of other products which have been incorporated into the Goods until payment due under all accounts between the Company and the Customer has been made in full.
  • 11.4 The Company will be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
  • 11.5 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this clause 11 shall remain in effect.

12. Personal Property Securities Act

• • 12.1 Notwithstanding anything to the contrary contained in these Conditions, the PPSA applies to these Conditions.
  • 12.2 For the purposes of the PPSA:(a) terms used in clause 12 that are defined in the PPSA have the same meaning as in the PPSA;(b) these Conditions are a security agreement and the Company has a Purchase Money Security Interest in all present and future goods supplied by the Company to the Customer and the proceeds of the Goods;(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and(d) the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by the Company on the Personal Property Securities Register.
  • 12.3 The security interest arising under this clause 12 attaches to the Goods when the Goods are collected or dispatched from the Company’s premises and not at any later time.
  • 12.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures, or other documentation specified under sections of the PPSA as detailed.

13. Force Majeure

• • 13.1 Subject to clause 13.3, neither the Company nor the Customer is liable in any way howsoever arising under the Contract to the extent that it is prevented from acting by events beyond its reasonable control including, but not limited to the list provided. If a Force Majeure Event occurs, the Company may suspend or terminate the Contract by written notice to the Customer.
  • 13.2 The Company reserves the right to defer the date of delivery of the Goods, or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from, or delayed in, the carrying on of its business due to a Force Majeure Event.
  • 13.3 Nothing in clause 13 is to be construed as operating to excuse the Customer from any obligation to pay the Company money.

14. Liability

• • 14.1 Except as these Conditions specifically state, or as contained in any express warranty provided in relation to the Goods, the Contract does not include by implication any other term, condition, or warranty in respect of the Goods’ attributes.
  • 14.2 If the Customer is a consumer nothing in these Conditions restricts, limits, or modifies the Customer’s rights or remedies against the Customer for failure of a statutory guarantee under the ACL.
  • 14.3 If the Customer on-supplies the Goods to a consumer and:(a) the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Company’s liability to the Customer;(b) the Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of the Company’s liability to the Customer; and so on for any contingencies or events under clause 14.
  • 14.4 If clause 14.2 or 14.3 do not apply, then other than as stated in the Conditions or any written warranty statement, the Company is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods by the Customer or any third party.
  • 14.5 The Company is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
  • 14.6 Subject to clause 14.7, if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in its written acceptance of the Customer’s order that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated.
  • 14.7 To the maximum extent permitted by law, the Company’s liability pursuant to clause 14.6 is limited to the replacement of any part of the Goods found to be defective and notified to the Company within a reasonable time from the delivery of the Goods. The clause lists several conditions (a-f) under which the liability is determined.
  • 14.8 If, upon investigation, the Company reasonably determines that any defect or deficiency in the Goods is a result of or is excused by certain conditions, the Customer shall be liable for all costs reasonably incurred by the Company in investigating the same and determining the cause.
  • 14.9 The Customer acknowledges that it has not relied on any service involving skill and judgment, or on any advice, recommendation, information, or assistance provided by the Customer in relation to the Goods or their use or application.
  • 14.10 Nothing in the Conditions is to be interpreted as excluding, restricting, or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted, or modified.
  • 14.11 To the maximum extent permitted by law, the Customer must hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities, loss, damages, injury, costs and expenses as further detailed in the clause.

15. Changes to the Goods
    • 15.1 The Company reserves the right, upon providing reasonable notice to the Customer, to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements or which, in the reasonable opinion of the Company, do not materially affect the specification of the Goods.

16. Termination

• • 16.1 The Company may terminate the Contract by written notice to the Customer if:(a) the Customer commits a continuing or material breach of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 days of receiving written notice of the breach, or

    (b) subject to any applicable statutory stay of proceedings:

    (i) where the Customer is a natural person and undergoes specific financial challenges;

    (ii) where the Customer is a corporation and experiences particular fiscal crises.

  • 16.2 The right to terminate the Contract given by this clause 16 shall not prejudice any other right or remedy of the Company against the Customer concerning the breach in question or any other breach.
  • 16.3 Upon termination of the Contract, all obligations of the Company thereunder shall cease.

17. General

• • 17.1 No forbearance or indulgence granted by the Company to the Customer shall in any way limit the rights of the Company under these Conditions. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
  • 17.2 Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by any person that is not a party to it.
  • 17.3 If any provision of these Conditions is deemed invalid or unenforceable by a competent authority, the validity of the remaining provisions remains unaffected.
  • 17.4 The Company may delegate any of its obligations or rights under the Contract to any other company or subsidiary at its discretion.
  • 17.5 The Contract embodies the entire agreement between the parties and supersedes all previous agreements and understandings between them.
  • 17.6 The parties commit to trying to resolve any disputes related to these Conditions through good faith negotiations or alternative dispute resolution before resorting to litigation.
  • 17.7 Any arbitrator or mediator, in case of a dispute, shall be appointed as described, with their decisions being final and binding.
  • 17.8 The law of New South Wales governs these Conditions. The parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and any other courts permitted to hear appeals from these courts.