Beaulieu of Australia Pty Ltd

Beaulieu of Australia Pty Ltd - Terms Of Trade

BEAULIEU OF AUSTRALIA PTY LTD

ABN 37 010 727 992

(hereinafter referred to as “Beaulieu”)

TERMS OF TRADE

1. These terms and conditions (Terms of Trade) apply to and form the agreement (Contract) between Beaulieu and the party identified as the customer in the credit application submitted to and accepted by Beaulieu (Customer) for the supply of goods (Goods).

2. The Customer must order the Goods by submitting an order (Order) to Beaulieu.

3. The Order will be deemed to be an offer by the Customer to purchase the Goods on these Terms of Trade.

4. The placing of an Order is conclusive evidence of the Customer’s acceptance of these Terms of Trade.

5. The price payable for the Goods will be Beaulieu’s list price at the time Beaulieu receives the Order (Price).

6. The Price excludes all transportation costs, insurance and other charges or costs associated with the delivery of the Goods and is exclusive of goods and services tax, sales tax or other tax imposed upon the sale of the Goods unless stated otherwise. All these costs and taxes (Additional Costs) will be paid by the Customer.

7. Beaulieu will deliver the Goods to the Customer’s nominated Australian address as set out in the Order. Beaulieu will take reasonable steps to ensure timely delivery of the Goods.

8. Unless the customer has a written credit agreement with Beaulieu, the Price and Additional Costs must be paid by the Customer in cash on delivery.

9. Where the customer has a written credit agreement with Beaulieu, all accounts are payable within thirty (30) days of the date a statement is sent by Beaulieu to the Customer, (which will be after invoice date).

10. If the amount payable on the statement is not paid within thirty (30) days of the date of that statement, then interest shall be payable by the Customer on the total amount owing by the Customer to Beaulieu from time to time outstanding calculated from thirty (30) days from the date of the statement until the date of actual payment at the rate of 12% per annum and compounding daily (which the Customer acknowledges is a genuine pre-estimate of the loss Beaulieu will suffer as a result of the late payment).

11. If the Customer fails to pay by the due date or if the Customer fails to comply with any other obligation under the Contract:

(a) the balance of money owing by the Customer to Beaulieu will immediately become due and payable without demand;

(b) Beaulieu may suspend any credit extended to the Customer; and

12. All payments are to be made to Beaulieu at its office at 166 Pearson Road, Yatala, in the State of Queensland.

13. The Customer must inspect the Goods promptly upon delivery and must within 7 days after the date of delivery give written notice to Beaulieu, with particulars, of any claim that the goods are not in accordance with these Terms of Trade. If the Customer fails to give that notice under this clause, then to the extent permitted by statute the Goods are deemed to have been accepted by the Customer and the Customer must pay for the Goods in accordance with the provisions of these Terms of Trade.

Beaulieu will be given a reasonable opportunity to inspect Goods were a claim is made under this clause and will determine such claim within a reasonable time.

14. Beaulieu reserves the following rights in relation to the Goods supplied to the Customer until all amounts owed by the Customer to Beaulieu are fully paid:

(a) Legal ownership of the goods will be retained by Beaulieu;

(b) Beaulieu will have the right to enter the Customer’s premises (or the premises of any associated third party or agent where the Goods are located) and without liability for trespass or any resulting damage and retake possession of the Goods, and

15. Until the Customer has paid Beaulieu all monies due to it, all the Goods delivered to the Customer must be held by the Customer as fiduciary bailee for Beaulieu, but the Customer may sell the Goods to a third party in the ordinary course of business. Any amount received by the Customer for the Goods must be held in trust by the Customer for Beaulieu absolutely until all amounts owed are paid to Beaulieu.

16. The Customer acknowledges that Beaulieu’s interest in the Goods pursuant to clauses 14 and 15 will constitute a Purchase Money Security Interest.

17. In clauses 16, 18, 19, 20, 22 and 30, the following terms have the following meanings:

(i) PPS Act means the Personal Property Security Act 2009 (Cth) and its regulations.

(ii) Purchase Money Security Interest has the meaning given to it in section 14 of the PPS Act.

(iii) Security Interest means a Security Interest within the meaning of section 12 of the PPS Act and/or a Purchase Money Security Interest as the context requires.

18. If Beaulieu holds any Security Interest in the Goods, the Customer agrees to implement, maintain and comply in all material respects with procedures for the perfection of those Security Interests.

19. The Customer must take all steps under the PPS Act to continuously perfect any such Security Interest, including all steps necessary for Beaulieu to obtain the highest ranking priority possible in respect of those Security Interests and to reduce as far as possible the risk of a third party acquiring an interest free of Beaulieu’s Security Interests.

20. The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any Security Interest under this Contract.

21. Everything which the Customer is required to do under clauses 18 and 19 is to be done at the expense of the Customer and the Customer agrees to reimburse Beaulieu for these costs.

22. To the maximum extent permitted by law, Beaulieu may give the Customer a written notice at any time which requires the parties to contract out of certain provisions of the PPS Act. If the Customer receives a written notice under this clause 22, the Customer will be deemed to have agreed to contract out of the PPS Act provisions identified in the notice.

23. Notwithstanding clauses 14 and 15, Beaulieu is entitled to maintain an action against the Customer for the Price, Additional Costs and any other amounts owed by the Customer to Beaulieu.

24. Notwithstanding the above, Goods delivered by Beaulieu to the Customer shall be at the risk of the Customer from the date of delivery.

25. Possession of the Goods shall be deemed to have passed to the Customer upon delivery to or into the custody of the customer or any servant or agent of the Customer whichever is the sooner.

26. Notwithstanding that the Goods may be delivered to some place outside Queensland or the agreement for supply of goods or credit may be made outside of Queensland, the Contract and any dealings between Beaulieu and the Customer shall be interpreted and governed in accordance with the laws in force in the State of Queensland, Australia.

27. The Customer hereby submits to the jurisdiction of any Court within Queensland as selected by Beaulieu should it be necessary to decide on any matter, claim or issue arising out of the Contract, the sale and delivery of Goods or any matter whatsoever between Beaulieu and the Customer.

28. Any legal costs on a solicitor and own client basis or any other expenses whatsoever incurred by Beaulieu in respect of the Contract, the credit application, personal guarantees or otherwise including collection costs, dishonoured cheque fees or expenses associated with the enforcement or attempted enforcement of any rights of Beaulieu pursuant to the Contract whether or not such attempts at enforcement are successful, shall be paid by the Customer promptly upon demand to the extent that such payment is permitted by law.

29. Subject to clause 30, all monies and credits received by Beaulieu shall be appropriated and applied as follows:

(a) Firstly, towards payment of any costs, charges, expenses or outgoings incurred by or paid by Beaulieu and payable by the Customer pursuant to Beaulieu’s rights under the Contract; and

(b) Secondly, in or towards payment of any interest due or payable by the Customer to Beaulieu; and

30. Beaulieu may at any time change the allocation of monies and credits under clause 29 at its discretion, including in any manner required to preserve any Security Interest it has in any of the Goods.

31. The Customer must not return any Goods which the Customer claims are not in accordance with the Contract (whether or not the Goods are deemed to be accepted by the Customer) unless Beaulieu has first given its written approval to their return. Their return must then be with freight and cartage prepaid by the Customer.

32. If Beaulieu has given its written approval to the return of goods deemed to be accepted under clause 31:

(a) Beaulieu will only give credit for the Goods returned if they are in a saleable condition as determined by Beaulieu.

(b) Beaulieu may charge a handling charge equivalent to up to 15% of the price of the Goods returned unless the prohibited by law (which the Customer acknowledges is a genuine pre-estimate of Beaulieu’s expense in doing so).

33. If Beaulieu has given its written approval to the return of Goods which are not deemed to have been accepted by the Customer under clause 13, Beaulieu must refund the reasonable freight and cartage paid by the Customer if the Customer’s claim that the Goods are not in accordance with the Contract is determined by Beaulieu to be valid.

34. Beaulieu warrants that the Goods are free and clear of all liens and encumbrances and that Beaulieu has good and marketable title to the Goods.

35. If the Goods have a value or are of a kind ordinarily acquired for personal, domestic or household use or consumption such as to attract to the Contract the operation of the provisions of the Competition and Consumer Act 2010 (Cth) or comparable State legislation, certain conditions and warranties (including consumer guarantees) may be implied into this Contract and rights and remedies conferred upon the Customer with respect to the Goods which cannot be excluded, restricted or modified by agreement (Implied Terms).

36. The Customer acknowledges that with respect to any Implied Terms, Beaulieu’s liability is, where permitted, limited to replacement (or the cost of replacement) of the Goods, the supply (or the cost of supply) of equivalent goods or the repair (or the cost of repair) of the Goods.

37. No further provisions will be deemed to be implied into this Contract or will arise by reason of any promise, representation, warranty or undertaking given or made by us.

38. Beaulieu gives no other conditions, warranties or guarantees either express or implied as to merchantability, fitness for purpose or otherwise with respect to the Goods other than as required by any applicable legislation (including the Competition and Consumer Act 2010 (Cth)).

39. To the maximum extent permitted by law, Beaulieu will not be liable for any prospective profits or special, indirect or consequential damages or for any expense resulting from use by the Customer or others of defective Goods.

40. Beaulieu will not be liable for any normal variation in tolerance, dimensions or quality of the Goods.

41. Beaulieu’s liability to the Customer will not be greater than the Price of the Goods supplied to the Customer.

42. Beaulieu shall not be liable in any way for any loss or damage to the Customer or any other person whether direct or consequential, which loss or damage arises directly or indirectly in any way from or in connection with Beaulieu’s use or attempted use of its powers pursuant to the Contract. This clause shall apply even though the use of the said powers may be unsuccessful or unjustified on any grounds whatsoever. Where such loss or damage occurs to some third party the Customer hereby indemnified and will keep indemnified Beaulieu against all liability therefore to the fullest extent permitted by law.

43. Beaulieu shall not be deemed to have waived any terms or conditions of this agreement or agree to any variation thereof unless it has done so expressly in writing.

44. The Customer acknowledges that Beaulieu may withdraw credit facilities at any time without notice and without giving any reason therefore.

45. Beaulieu may at its absolute discretion and where the Customer is in default of the Contract, stop credit until the Customer’s account is brought within the trading terms of the Contract.

46. The Customer authorises Beaulieu to give to and obtain from a credit reporting agency or credit provider personal information about the Customer. The Customer also acknowledges and accepts Beaulieu’s privacy policy.

47. If the Customer does not place an Order for six (6) months, the credit trading account is withdrawn and may only be reinstated on the basis of a new credit application submitted by the Customer and accepted by Beaulieu.

48. If there is any change in ownership, control or management of the Customer, the customer must so notify Beaulieu within 7 clear days prior to that change and Beaulieu (in its absolute discretion) may terminate this Contract or amend the trading terms offered to the Customer.

49. This Contract is to be interpreted subject to the Competition and Consumer Act 2010 (Cth) and other applicable laws.