TELLAP PTY LIMITED

 TERMS AND CONDITIONS OF SUPPLY

Tellap’s Quotation or an Order accepted by Tellap and these Terms comprise the terms on which Tellap will supply products and services to the Customer. Together they contain the entire Contract between Tellap and the Customer with respect to (and supersede all earlier communications between Tellap and the Customer in relation to) the sale and purchase of the Products referred to in the Quotation or Order. Definitions

1.1    In these Terms, unless the context otherwise requires:

         (a)     "Contract" means any contract for the sale or supply of Products entered into between Tellap and the Customer.

(b)     "Customer" means the person to whom any Quotation is given, any person who offers to contract with Tellap on these Terms and any person who purchases Products from Tellap.

(c)     “Insolvency Event” means any of the events specified in clause 7.5(a) to (e) inclusive.

(d)     "Order" means an order submitted by the Customer to Tellap.

(e)     "Products" means all products and services which Tellap agrees to supply to the Customer under any contract, arrangement or understanding between Tellap and the Customer.

(f)      “Quotation” includes any quotation, offer or proposal issued or made by Tellap.

(g)     “Tax” includes goods and services tax, value added tax, sales and/or use tax and any other transaction, consumption or analogous tax, duty, levy or impost.

(h)     "Tellap" means Tellap Pty Ltd and its agents, servants and employees.

(i)      "Terms" means these terms and conditions.

  1. Interpretation

2.1    In these Terms and in any Order or Quotation, unless the context otherwise requires:

         (a)     Words importing the singular number shall include the plural and vice versa and words importing a person shall include a corporation and vice versa and words of each gender and the neuter gender shall include each other gender;

         (b)     Any term to be performed on the part of two or more parties shall be deemed to bind such parties and each of them jointly and severally;

         (c)     Time is of the essence in relation to the performance of all acts and obligations on the part of the Customer;

         (d)     Where an act is required to be performed on a Saturday, Sunday or Public Holiday the time for performance of such act shall be extended to the next business day thereafter, except in the case of payment by the Customer to Tellap of any sum, in which case the time for performance shall be reduced to the last business day preceding such Saturday, Sunday or Public Holiday as the case may be;

         (e)     The obligations of the Customer shall bind its legal personal representatives and/or its permitted assigns.

  1. Contract terms

3.1    The Customer will be deemed to have accepted the terms and conditions of the Contract by submitting an Order. The Customer agrees that the terms of the Contract shall in all circumstances prevail over the Customer's terms and conditions of purchase (if any).

3.2    In case of conflict between a Quotation or an Order accepted by Tellap and these Terms, the terms of the Quotation or Order will prevail over these Terms.

3.3    No variation of the terms of the Contract will be valid unless agreed in writing and signed by duly authorised representatives of both Tellap and the Customer.

3.4    Tellap reserves the right to change these Terms at any time without notice. The amended Terms will take effect from the day on which a copy of them is delivered to the Customer and the Customer will be taken to have agreed to the amended Terms if the Customer places an Order after such amendments have been made.

3.5    Incoterms 2010 edition applies to matters not covered by a Contract. In case of conflict between a Contract and Incoterms 2010, the terms of the Contract prevail. The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to any Contract.

  1. Quotations and Orders

4.1    The issue of a Quotation does not constitute an offer by Tellap to sell the Products referred to in it. Any Order placed by the Customer will be an offer by the Customer to purchase the requested Products:

         (a)     At the prices shown in the relevant Quotation; or

         (b)     (In the absence of a Quotation) at Tellap’s published prices at the time the Order is submitted;

         and in accordance with these Terms.

4.2    Unless otherwise agreed by Tellap, Orders must be placed on Tellap’s website.

4.3    Tellap reserves the right at any time after receipt of an Order to accept or decline that Order without giving any reason.

  1. Prices

5.1    Unless otherwise agreed in writing, the price charged for the Products shall be the price ruling as determined by Tellap at the date of delivery. Any price indications are subject to alteration in accordance with the price ruling at that date.

  1. Taxes

6.1    Unless otherwise agreed in writing, the price charged for Products is exclusive of Tax and all other taxes, imposts, duties and other government charges (including any introduced after acceptance of the Order and before title in and to the Products passes) which shall be added to the price and paid by the Customer at the same time as payment of the price. If applicable, Tellap shall provide the Customer with a valid tax invoice or equivalent applicable in the territory where the sale takes place. Tellap and the Customer will cooperate to ensure so far as possible that the Tax treatment is accepted by the relevant tax authorities and will produce all necessary invoices, records and other documents for this purpose.

  1. Payment and default

7.1    Unless otherwise specified in the Quotation or Order accepted by Tellap, all sums payable for Products must be paid by cash, bank cheque or electronic funds transfer in 2 installments, as follows:

(a)     50% with the Order for the Products; and

(b)     50% on delivery of the Products.

7.2    The Customer will be responsible for any sum charged by Tellap’s bankers for any cheque which is not honoured on presentation.

7.3    Tellap may charge interest on overdue amounts at the Reserve Bank of Australia Cash Rate Operating Target plus 4%. Interest will be calculated at daily rests on the balance outstanding from time to time and compounded monthly.

7.4    The customer will indemnify Tellap for all legal costs and expenses (on a full indemnity basis) incurred by Tellap in proceedings against the Customer for the recovery of any debt of the Customer to Tellap.

7.5    If any of the events set out in (a) to (e) below occur, Tellap may at its option withhold further deliveries or cancel the Contract without notice to the Customer and without prejudice to any other action or remedy which Tellap has or might otherwise have had and all moneys owing and outstanding to Tellap on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:

(a)     The Customer defaults in making any payment or is unable or states that it is unable to pay its debts as and when they fall due;

  • The Customer, being an individual, commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer's estate or any part of the Customer's property or assets;
  • The Customer, being a company, passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
  • A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer;
  • The Customer enters into a scheme of arrangement with its creditors or has execution levied against any of its assets;
  • The Customer experiences any analogous event having substantially similar effect to any of the events specified above.

7.6    Notwithstanding anything in these Terms, Tellap may at all times in its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore review, alter or terminate the Customer's credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of Tellap shall be final and Tellap shall incur no liability or responsibility for any loss, howsoever arising, incurred by the Customer due to the operation of this condition.

  1. Source of Products

8.1    If a Contract does not state a specific source of the Products to which the Contract relates, Tellap may declare the source of the relevant Products and that Contract will become a contract for the supply of those Products from that source.

  1. Import licences

         The Customer shall be solely responsible for obtaining any licence required for import of the Products to the country in which they are to be delivered.

  1. Delivery and acceptance

10.1  Tellap will endeavour to deliver the Products to the Customer on the date agreed for delivery, but Tellap shall not be liable for any failure to deliver or delay in delivery for any reason. The Customer must accept and pay for the Products even if they are delivered late.

10.2  Tellap will not be liable for any loss or damage resulting from late delivery and late delivery will not entitle the Customer to cancel its Order. Tellap will also not be liable for any loss or damage arising from the Customer's lost, damaged or stolen Products following delivery.

10.3  Tellap may deliver the Products in instalments. Each instalment will be treated as a separate shipment under the relevant Contract. However, if the Customer does not pay for an instalment, Tellap may treat the non-payment as a breach of contract relating to the other instalments.

10.4  Products are not returnable to Tellap. The Customer will examine the Products for defects and to check the quantity delivered and will notify Tellap of any defects or shortfall in the quantity delivered in writing within 7 days of delivery. If the Customer does not notify Tellap within 7 days of delivery, the Customer shall be deemed to have received the correct quantity and to have accepted the Products. Tellap will not be liable for any claim made after 7 days from the date of delivery.

10.5  If the quantity of the Products delivered to the Customer is more than the amount the Customer ordered, the Customer must immediately inform Tellap in writing and Tellap is entitled to charge the Customer for the excess or to recover the excess from the Customer.

10.6  If the Customer does not collect the Products or provide adequate delivery instructions within 2 days of request by Tellap, Tellap may charge for their storage. The Customer must pay such storage charges monthly at commercial rates. The Products will be stored at the Customer’s risk.

  1. Force majeure

11.1  Deliveries may be totally or partially suspended by Tellap during any period in which Tellap may be prevented or hindered from manufacture, delivery or supply through any circumstances outside Tellap’s reasonable control, including but not limited to flood, earthquake, strike, lockout or other labour difficulty, government prohibition or regulation, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network, provided that, if any such condition shall continue for more than one month, then the Customer shall have the right to terminate the Contract immediately, by written notice to Tellap. Tellap shall not incur any liability to the Customer in respect of such suspension.

  1. Title to goods

12.1  Title in and to the Products shall pass to the Customer on delivery.

  1. Risk in goods

13.1  Unless otherwise agreed in writing, all risk in and to the Products purchased shall pass to the Customer upon delivery to the Customer or its agent or to a carrier commissioned by the Customer.

13.2  Without in any way limiting the operation of the foregoing, upon delivery of the Products to the Customer or its agent or to a carrier commissioned by the Customer, the Customer covenants and warrants to Tellap that, in the storage, handling and disposal of the Products, the Customer and its agents and carriers shall comply with all relevant occupational health and safety and environmental laws and regulations and all necessary and/or relevant permits or licences pertaining to the storing, handling and disposal of the Products, and the Customer shall ensure that the Customer and its agents and carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing, handling and disposal of the Products.

  1. Representations and warranties

14.1  Tellap warrants only that the Products will conform to the description stated in the Quotation or the Order accepted by Tellap and that Tellap will give good title to the Products. Contracts are sales by description and not sales by sample.

14.2  Tellap makes no representation and excludes all warranties as to fitness or suitability of the Products for any particular purpose. The Customer is solely responsible for checking the Products for compliance with all applicable standards and regulatory requirements before use or application.

14.3  The Customer warrants that it relies solely on its own knowledge and expertise in selecting Products for any purpose and that it has not relied on:

  • Any representation made by Tellap which is not stated expressly in the Contract or upon any description, illustration or specification contained in any document, including any catalogues or publicity material produced by Tellap; or
  • Any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by Tellap in relation to the Products or their use or application.

14.4  The Customer warrants that by instructing Tellap to supply the Products under the Contracts, it will not cause Tellap to infringe any letters patent, registered design, trade mark or trade name in the performance of the Contracts.

  1. Limitation of liability

15.1  Except as expressly provided to the contrary in the Contract, Tellap shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage including, but not limited to, additional costs or loss of income, profit, goodwill or reputation) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of goods or services pursuant to the Contract or the failure or omission on the part of Tellap to comply with its obligations under the Contract.

15.2  Except as expressly provided to the contrary in the Contract, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of the Contract or to the Contract generally, are excluded. Where any Act of Parliament implies in the Contract any term, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such term, such term shall be deemed to be included in the Contract. However, the liability of Tellap for any breach of such term shall (if permitted by that Act) be limited, at the option of Tellap, to any one or more of the following:

         (a)     If the breach relates to goods:

                   (i)      The replacement of the goods or the supply of equivalent goods;

                   (ii)     The repair of such goods;

                   (iii)    The payment of the cost of replacing the goods or of acquiring equivalent goods; or

                   (iv)     The payment of the cost of having the goods repaired; and

         (b)     If the breach relates to services:

                   (i)      The supplying of the services again; or

                   (ii)     The payment of the cost of having the services supplied again;

         or, in either case, refund of the sums paid by the Customer to Tellap under the Contract.

15.3  The Customer must use reasonable endeavours to mitigate any loss suffered or incurred which might be the subject of a claim by the Customer against Tellap under any Contract.

  1. Indemnity

16.1  The Customer shall indemnify and hold Tellap harmless from and against all actions, claims, demands, liabilities, losses, damages, costs, charges and expenses suffered or incurred by Tellap in consequence of any of the following:

(a)     Tellap’s compliance with the Customer’s instructions concerning the Products;

(b)     The Customer’s failure to provide or display safety information on or relating to the Products, to comply with laws relating to the marketing, labelling or marking, sale or use of the Products or to bring to Tellap’s attention matters for which Tellap may become liable, whether due to negligence, under legislation or otherwise;

(c)     Any statement which the Customer makes about the Products without Tellap’s written approval;

(d)     The use of the Products by the Customer or any other person;

(e)     The Customer’s negligence, wilful misconduct or breach of a Contract; or

(f)      Any breach by the Customer of the warranty in clause 14.4.

16.2  The Customer agrees that:

         (a)     The Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption; and

         (b)     The Customer will acquire the Products for resupply.

16.3  Each indemnity provided by the Customer is a continuing obligation separate and independent from the parties’ other obligations and survives the expiry or earlier termination of any Contract.

  1. Cancellation

17.1 Tellap may by written notice immediately cancel any Contract for the delivery of any future instalment of the Products and may re-sell the Products and/or demand immediate payment of all outstanding sums (whether or not then due and payable):

         (a)     If the Customer fails to perform or observe any of these Terms (including payment terms);

         (b)     If the Customer, in the reasonable opinion of Tellap, has unsatisfactory creditworthiness;

         (c)     If the Customer has any of its property seized by the holder of any security; or

         (d)     If an Insolvency Event occurs with respect to the Customer.

17.2  Tellap may extend the time of shipment or delivery and make alternative shipping or delivery arrangements or cancel any Contract if Tellap does not receive the following from the Customer in ample time to enable Tellap to make shipping or delivery arrangements for the Products:

         (a)     Marking and shipping instructions; and

         (b)     Import certificates and documents required to obtain governmental licences and authorisation in order to make shipments.

17.3  If Tellap cancels a Contract in accordance with sub-clause 1 or sub-clause 2 of this clause, Tellap may stop the shipment or further shipment of the Products and may recover from the Customer any sum due at the time of cancellation of the Contract and any loss or damage suffered by Tellap as a result of cancellation of the Contract.

17.4  Tellap may cancel any Contract by giving written notice to the Customer if the Products which are the subject of the Contract remain undelivered or uncollected after 14 days from the time when Tellap informs the Customer that the Products are ready for delivery or collection.

17.5  The Customer may by written notice immediately cancel any Contract for the delivery of any future instalment of the Products:

         (a)     if Tellap fails to perform or observe any term of any Contract and fails to remedy the breach within a reasonable time after being notified of the breach by the Customer; or

         (b)     If an Insolvency Event occurs with respect to Tellap.

  1. Employees and contractors

16.1  For 6 months after expiry or termination of the Contract, neither party shall solicit for employment, either directly or indirectly, any person who is employed or contracted by the other party.

18.2  A party shall promptly advise the other party if a person who is employed or contracted by the other party and whose title includes the word ‘manager’ or ‘officer’ seeks to be employed or contracted by the first-mentioned party within 3 months after expiry or termination of the Contract.

  1. Notices

19.1  Any notice, order, acceptance or other communication between Tellap and the Customer shall be in writing and signed and delivered or sent to the address of the intended recipient specified in the Contract or to such other address as that party may substitute by written notice to the other party. Such notice, order, acceptance or other communication shall:

(a)     If sent by pre-paid post, be deemed to have been received on the fifth day after the date of posting if posted in the country of its delivery and on the seventh day after the date of posting if posted in a country other than the country of its delivery;

            (b)     If sent by facsimile, be deemed to be received upon receipt by the sender of a confirmation of due receipt printed by the sender's facsimile machine;

            (c)     If delivered by hand, be deemed to be received on the date of delivery,

provided that if the time of despatch or delivery (as the case may be) is after 4 p.m. on a day on which business generally is carried on in the place to which such facsimile communication is sent, or in the place in which personal delivery is made, the notice shall be deemed to have been received at the commencement of the next business day in that place.

  1. Waiver

20.1  Even if Tellap does not insist on strict performance of a Contract, Tellap is not taken to have waived its right to require strict performance later. Even if Tellap provides an express waiver, this is not to be taken as a waiver of a subsequent breach of any term or condition.

  1. Assignment

21.1  The Customer may not assign or transfer any of its rights or obligations under any Contract without the prior written consent of Tellap, which may be given or withheld by Tellap in its absolute discretion.

  1. Severance

22.1  If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.

  1. Dispute resolution

23.1 Any dispute arising in connection with the Contract which cannot be settled by negotiation between the parties’ representatives shall be submitted to arbitration under the provisions of the Commercial Arbitration Act, 1984 (New South Wales) by the nominee of the President for the time being of the Law Society of New South Wales. Either party shall be entitled to refer any dispute to the President of the Law Society for determination pursuant to this provision. During such arbitration, both parties may be legally represented.

23.2 Before referring a matter to arbitration pursuant to clause 23.1, the parties shall:

(a)     Formally refer the dispute to their respective representatives for consideration;

(b)     If the parties’ respective representatives are unable to resolve the dispute after five (5) days (or such other period as is agreed between the parties) from the date of referral, refer the dispute to the respective chief executive officers of each party; and

(c)     In good faith explore the prospect of mediation.

23.3 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.

  1. Governing law and jurisdiction

24.1   The Contract is governed by the law of the State of New South Wales, Australia, and Tellap and the Customer submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and any court that may hear appeals from any of those courts and waives any right it might have to claim that those courts are an inconvenient forum.