The following terms and conditions apply to the sale of all Goods by the Company. These terms and conditions replace and supersede all other terms and conditions between the Company and Purchaser.

1) Introduction

These terms and conditions of trade ("Terms") apply to the sale of all goods ("Goods") by us to you and record our respective responsibilities, rights, and obligations pursuant to the sale of Goods. These Terms replace and supersede all other terms and conditions between you and us, including but not limited to your purchase orders.

2) Definitions

(a) “We,” “us,” or “ours” means and includes Dy-Mark (Aust.) Pty Ltd ACN 007 645 687 (ABN 62 007 645 687) and Aerotek Australia Pty Ltd ACN 169 774 869 (ABN 41 169 774 869) including any of the related bodies corporate;

(b) “Deliver” and “Delivery” means the delivery of Goods by our designated freight carrier or agent to the location specified in the Order Confirmation. For the avoidance of doubt, should you arrange your own freight carrier or agent to transport the Goods, you agree to arrange that directly with your freight carrier or agent at your cost, with risk in the Goods transferring at the point of collection from our distribution or warehouse location specified in the Order Confirmation. “Deliver” and “Delivery” includes supply as the context requires;

(c) “FIS” means free into store;

(d) “Force Majeure” means an Act of God, fire, storm, flood, earthquake, war, riot, civil disturbance, law, order, or directive of any Government Authority, or any other act or condition beyond the reasonable control of either you or us;

(e) “Goods” means all products and services sold or supplied by us;

(f) “Government Authority” means any government body or department with authority to regulate Goods of the nature described and supplied under these Terms;

(g) “GST” means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);

(h) “Order Confirmation” means, after you have accepted our offer, we will issue you with confirmation of the order, and includes “Order” as the context requires;

(i) “Person” includes a legal entity as defined under Australian legislation; a corporate trustee; an individual trustee; a partnership; as well as individuals contracting in their own capacity;

(j) “Price” means the Price payable plus any applicable GST for the Goods as set out in the Order Confirmation, approved Order Confirmation Variation, or Tax Invoice, as the context applies, and as agreed between you and us in accordance with these Terms;

(k) “Price List” means a list of prices of Goods provided by us to you from time to time when you open an account with us, and which is subject to change at our sole discretion;

(l) “Tax Invoice” means the invoice as described in clause 23(a);

(m) “You” means the person(s) or person acting on behalf of you and with your authority requesting us to provide Goods as set out in any proposal, quote, scope of works, invoice, or other related documentation provided by us to you, or provided by you to us. This includes any successors in title, permitted assigns, executors, or administrators. Where there is more than one customer, each customer is jointly and severally liable to us.

3) Quotations and Purchase Orders

(a) Quotations are subject to withdrawal or variation by us at any time. Any quotation made by us is not an offer to sell and no order based on a quotation will bind us until the order is accepted by us. Unless otherwise agreed in writing, all orders are subject to acceptance by us within 30 calendar days of receipt by us of your purchase order.

(b) Where your purchase order refers to goods and pricing as provided in a current Price List, such goods and pricing shall be subject to confirmation by us.

(c) Where you have not stated the pricing for goods in your purchase order or the pricing is incorrectly stated, we shall confirm the pricing for goods and require you to confirm your agreement with the updated pricing of goods provided by us.

(d) Where orders are placed with us telephonically, the pricing for such goods shall be communicated to you telephonically and confirmed in writing via email to you.

(e) Where orders are placed over the internet using our web-based ordering platform:

(i) For customers that have agreed trading terms with us, the online pricing for goods ordered shall apply. After accepting the online pricing for the goods ordered, an Order Confirmation shall be issued to you. Payment for goods will be in accordance with your credit terms.

(ii) For customers that do not have agreed trading terms with us, the online pricing for goods ordered shall apply with payment required at the time of placing the online order. An Order Confirmation shall be sent to you.

(f) Any modifications agreed to verbally will only be effective after confirmation by us in writing and recorded in the Order Confirmation.

4) Offer and Acceptance

When you accept an offer made by us, we will issue you with an Order Confirmation. The Order Confirmation and these Terms relating to the supply of Goods collectively is referred to as “the Agreement.” The Agreement excludes any terms and conditions specified by you, whether verbal or in writing, unless we have expressly agreed in writing to your terms and conditions of trade in the Order Confirmation. All representations, statements, terms and conditions, and warranties (whether implied by statute or otherwise) not embodied in the Agreement are expressly excluded to the fullest extent permitted by law. If there is any inconsistency between these Terms, the Order Confirmation, and any terms expressly agreed with you in writing, the Order Confirmation shall prevail to the extent of any inconsistency.

5) Price and Payment

(a) Subject to 5(e) below, the Price for the delivery of the Goods shall be the price stated in the Order Confirmation, which will be valid for the period stated in the Order Confirmation or otherwise for a period of seven (7) days if not stated in the Order Confirmation.

(b) Unless credit terms have been extended to you in writing, payment for Goods as set out in the Order Confirmation is due immediately upon dispatch of the Goods to you or your carrier or agent.

(c) We reserve the right to charge you interest at the rate of 5% per annum calculated daily from the due date for payment until payment is received by us.

(d) All payments by credit card will attract a 3% + GST surcharge.

(e) We reserve the right to change the Price in the Order Confirmation if a variation to the Order Confirmation is requested by you. In this regard, we shall provide you with an Order Confirmation Variation (Order Confirmation Variation) which will set out the details of the price change and any changes to Delivery dates and/or Delivery locations. You are required to confirm any Order Confirmation Variations submitted by us to you within ten (10) working days. If we don’t receive your written confirmation, the Order Confirmation Variation will not be valid. This may mean that we cannot fully complete the Delivery of the Goods to you, and you agree that you will not hold us liable for any losses and/or damages that may be incurred by you for failure to approve the Order Confirmation Variation.

(f) Payment for all valid Order Confirmation Variations must be made in full at the time of their confirmation.

6) Price Variation

If between the date of the Order Confirmation and the date of Delivery of Goods, the cost of any of the Goods or their components increases for any reason, including material fluctuation in the Australian Dollar or amended tax legislation, we reserve the right to amend our prices for any undelivered portion of the Order and issue an updated Order Confirmation. However, you have the right to cancel the outstanding balance of the Order within 7 calendar days from the date of notification of the price amendment. We reserve our rights to amend our purchase price if additional requests are made by you in relation to the Goods.

7) Delivery

(a) We shall deliver the Goods to the location specified by you in the Order Confirmation. Should you not specify a location, we shall deliver the Goods to your registered business address we have on record. Should you subsequently provide further instructions to change the delivery location, we reserve the right to issue you with an Order Confirmation Variation including additional freight charges for delivery of Goods to your specified delivery location. For avoidance of doubt, any instructions to deliver Goods to locations other than your registered business address will not be treated as a FIS delivery and will incur additional costs for freight delivery which you are liable to pay.

(b) Where you have not, by the Delivery date, taken or accepted Delivery of all Goods, the Price of the undelivered Goods may be subject to variation (above) and the balance of the Price of the undelivered Goods or any instalment(s) shall be paid immediately on Delivery or upon tender by us.

(c) We shall use our best endeavours to dispatch the Goods by the agreed date in the Order Confirmation but any date quoted for Delivery in the Order Confirmation is an estimate only and we shall not be liable to you for any loss or damage however arising for failure to Deliver on or before the quoted date.

(d) Late Delivery or failure to Deliver does not entitle you to cancel any order or part order. As we use third party freight carriers and agents to deliver Goods, from time to time there are circumstances beyond our control where late deliveries occur or goods are not delivered in the time set out in the Order Confirmation. We will advise you in writing as soon as reasonably possible where there is likely to be a late delivery or no delivery of goods and provide you with an indication for a revised delivery date.

(e) We reserve the right to Deliver the Goods by instalment(s). If Delivery is made by instalment(s), you shall pay to us all money owing for each instalment(s) dispatched and you shall not be entitled to cancel or otherwise avoid accepting and paying for any instalment(s) dispatched or terminate or cancel any instalment(s) yet to be Delivered.

(f) We reserve the right to Deliver the Goods by instalment(s). If Delivery is made by instalment(s), you shall pay to us all money owing for each instalment(s) dispatched and you shall not be entitled to cancel or otherwise avoid accepting and paying for any instalment(s) dispatched or terminate or cancel any instalment(s) yet to be Delivered.

(g) In the event of a product recall of any nature, we reserve the right to suspend the supply of any Order in whole or in part or discontinue the supply of Goods without incurring any liability. We shall provide written notice of any such product recalls and shall use our best endeavours to provide you with a substitute product of a similar nature.

(h) We shall use our best endeavours to Deliver the quantity of Goods in the Order, however you shall accept and pay for, at the agreed price per unit, the Goods actually Delivered, notwithstanding that the number or amount of Goods Delivered may be less than the number or amount set out in the Order Confirmation.

(i) Where Goods dispatched to you are less than the quantities set out in the Order Confirmation, we shall place the balance of quantities of Goods not supplied to you on backorder (Backorder). We shall notify you in writing of any Backorders relating to your Order Confirmation. Backorders shall be supplied to you without any costs for freight deliveries to your nominated delivery location in the Order Confirmation. Should you wish to cancel any Backorder quantities, the provisions of clause 8 shall apply. We do not accept any cancellations of Backorder quantities once a period of three months has passed after the Backorder was placed.

(j) Where you request an Order by instalments, delivery charges shall apply at our discretion.

(k) A Tax Invoice will be issued to you on delivery of Goods.

(l) The rights conferred on us by this clause are without prejudice to any other rights and remedies of us.

8) Order Cancellations

Once an Order Confirmation is issued, it can only be cancelled by mutual agreement between us in writing. You agree to reimburse and indemnify us for any costs, expenses or charges incurred by us in relation to the return of the Goods in the cancelled Order. A 20% handling fee will be deducted by us for all cancelled Orders in relation to all Goods that have already been dispatched to your delivery location or delivered to your delivery location.

9) Returns and Credits

(a) You may return Goods to us for a credit subject to you notifying us in writing within 7 calendar days of Delivery of Goods. You are responsible for the payment of any costs associated with the return (e.g. freight) of the Goods to us. A 20% handling fee will be deducted by us for all returns of Goods. We shall provide you with a credit with the return of Goods at the price as set out in the Tax Invoice less the 20% handling fee. Only Goods that still have a minimum remaining shelf life of 12 months will be accepted for return. For avoidance of doubt, we do not accept any return of clearance Goods for a credit or replacement.

(b) Where Goods received by you are deemed to be faulty (Alleged Faulty Goods), such Alleged Faulty Goods may be returned to us for a credit or replacement if you notify us in writing within 7 days of Delivery of Goods as to the reasons for the Goods being faulty. You are responsible for the payment of any costs associated with the return (e.g. freight) of the Alleged Faulty Goods to us. On receipt of the Alleged Faulty Goods, we shall investigate your claims and make a determination as to whether the Goods are faulty or not. Our determination is final. Should we determine that the Alleged Faulty Goods are faulty, we shall reimburse you for the return freight costs of the Alleged Faulty Goods and provide either a replacement of the Goods or a credit. Where we determine after investigating that the Alleged Faulty Goods are not faulty but have not been used in accordance with the manufacturer’s guidelines, we shall not provide you with a replacement of the Goods or a credit. We shall confirm in writing the results of our investigation with you.

(c) Where you advise us that Goods in the Order Confirmation have not been received by you, either as the entire Order or partial Order, you must advise us in writing within 7 days of receipt of the partial order or date that the Delivery was due to be delivered to you of the details regarding the short supply quantities of goods (i.e. number of cartons or pallets or units) that were not delivered. We shall confirm the short supply quantities after receiving the proof of delivery (POD) from the freight provider/agent along with your signature for receipt of goods.

(d) Where there is a short supply of Goods delivered to you, we shall dispatch a further quantity of Goods to you as soon as reasonably possible to complete the quantity in the Order Confirmation. We shall supply the further quantity of goods to you at no additional freight cost to the location in the Order Confirmation. Should you subsequently cancel the Order for the balance of goods, clause 8 shall apply regarding cancelled orders.

10) Tender of Goods

Notice by us to you that we are ready to Deliver the Goods (or an instalment thereof) shall be sufficient tender to you of the Goods.

11) Inspection of Goods

(a) You have the right to inspect the Goods to confirm that the Goods conform to the specifications and drawings (if any) and that appropriate materials and workmanship have been used in their manufacture. If you allege that the Goods do not conform or that appropriate materials or workmanship have not been used, then you must give written notice to us within 7 calendar days from the date of delivery of the Goods. Goods which are alleged to be defective must then be placed aside for inspection by a representative of ours. If you fail to give such notice within 7 calendar days from the date of delivery of the Goods, the Goods shall be deemed to be accepted by you and you shall be bound to accept and pay for the Goods.

(b) Clause 11(a) is to be read in conjunction with clause 9(b).

12) Description and Specification

While every effort is made to ensure the accuracy of the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets, technical data sheets, material safety data sheets or other descriptive matter or advice provided by or on behalf of us, you acknowledge and accept that this descriptive matter or advice describes the general nature of the Goods only and does not form a part of any order or agreement or amount to a representation or warranty. We reserve the right to modify the design of Goods without notice.

13) Designs and Specifications

(a) We will not be liable for any defect in Goods arising from designs, drawings or specifications supplied by you or your agents to us.

(b) We reserve the right to make any changes to designs, drawings or specifications supplied by you to us which are required to comply or conform with any applicable safety or statutory requirements or which do not materially affect the quality or usage of the Goods by you.

(c) We do not warrant or guarantee that any Goods supplied by us which are based in whole or in part upon any designs, drawings or specifications supplied to us by you will achieve any standard or performance or be suitable for any specific purpose.

14) Intellectual Property Rights

(a) All copyright or other intellectual property rights (e.g., product formulations) in the Goods remain the sole property of ours. We warrant that Goods supplied by us do not infringe any intellectual property rights. We agree to indemnify and keep you indemnified against all actions, liabilities, claims, demands, costs, expenses, and damages which you may incur, sustain, or be subjected to as a result of the Goods supplied to you so long as the Goods are used in their original form delivered to you.

(b) The supply of Goods implies a license to you to use the Goods but for no other purpose. You undertake not to utilise, copy, reproduce, or disclose or permit others to utilise, copy, reproduce, or disclose any intellectual property without our prior written consent.

(c) You warrant that Goods supplied by us which are based in whole or in part upon designs, drawings, or specifications supplied to us by or on behalf of you do not infringe any intellectual property rights held by a third party.

(d) You agree to indemnify and keep indemnified us, its servants, and agents against all actions, liabilities, claims, demands, costs, expenses, and damages which us, its servants, or agents may incur, sustain, or be subjected to in consequence of it having, at the request of you, applied a design or any other markings on the Goods.

(e) Where you provide information regarding Goods which are to be used for products that require particular identification pursuant to any law or regulation of a competent Government Authority, compliance with any such law or regulation is your sole responsibility, and you agree to indemnify us against all liability, claims, costs, and expenses of any nature arising from any infringement or non-compliance. No liability is accepted nor warranty given concerning the readability or suitability of symbols, codes, or wording on the Goods.

15) Equipment

All equipment and other items used in the manufacture of the Goods shall, in the absence of a written agreement to the contrary, remain our exclusive property notwithstanding any contribution by you in respect of the cost of their production, use, or maintenance.

16) Limitation of Liability

Subject to the provisions of these Terms, to the extent permitted by law, neither you nor we shall be liable for any indirect losses and consequential losses, indirect damages, financial, deterioration, deficiency, defect or other fault or harm arising from, caused by or concerning the supply of Goods by or on behalf of us and the use of such Goods by you.

In particular, we shall not be liable for:

• defects or damage caused in whole or in part by misuse, abuse, neglect, error, electrical or other overload, improper installation, repair, alteration or accident;
• transport, installation, removal, labour or other costs;
• modifications or changes to the Goods not authorised in writing by us or any other unauthorised acts by you or a third party;
• Goods not manufactured by us (although we will endeavour to pass on to you the benefit of any claim made by us and accepted by the manufacturer of such Goods under any warranty given by that manufacturer); and
• technical advice or assistance given or tendered by us to you whether or not in connection with the manufacture or supply of the Goods.

Our liability shall in all circumstances be limited to:

• the replacement of the Goods; or
• the supply of equivalent Goods; or
• payment of the cost of replacing the Goods or acquiring equivalent Goods; or
• the repair of the Goods or payment of the cost of having the Goods repaired; as we may determine in our absolute discretion.

17) No Warranty

We give no warranty as to the fitness of the Goods for any particular purpose or use and shall have no liability in that regard.

Goods supplied under these Terms should only be used after the Goods have been properly tested by or on behalf of you.

The risks involved and any cost of testing the Goods will be your responsibility.

18) Insolvency and Default

if:

(a) you default on any payment due or in the performance and observance of any term or condition set out in these Terms;

(b) a resolution is passed or proposed or a petition is presented or an application filed or an order made for the winding up or liquidation of you;

(c) a receiver, receiver and manager or controller (as defined in the Corporations Law) is appointed to the property or any part of the property of yours;

(d) you make or propose to make any arrangements with your creditors;

(e) you are placed under administration or an administrator is appointed;

(f) execution is levied upon your assets for an amount in excess of $1,000.00 and is not satisfied within 7 calendar days;

(g) you are the subject of a Debtor’s or Creditor’s Petition in bankruptcy or are the subject of a Bankruptcy Notice;

then we may, without prejudice to any other remedy available to us, withhold further deliveries or cancel any Agreement between you and us.

19) Risk

All risk in the Goods Delivered by us to you passes to you as soon as the Goods have been Delivered to you, your carrier, or agent.

20) Title

Although risk in the Goods passes on Delivery to you or your agent or carrier, title in the Goods shall not pass to you until either:

(a) payment in full in cleared funds of the purchase price for the Goods has been received by us and for all other Goods sold by us to you for which payment is due; or

(b) where credit terms have been extended to you in writing, then title in the Goods shall pass to you as set out in those credit terms.

21) Force Majeure

We will make all reasonable efforts to supply the Goods, but failure to do so for any reason beyond our reasonable control including, but not limited to, a Force Majeure, or owing to our inability to procure materials or supplies except at increased prices due to any of the foregoing causes, shall not constitute a breach of contract by us and our obligation to supply the Goods will be suspended for the period of time associated with the Force Majeure event. In those circumstances, either you or we may at any time cancel the Agreement or any unfulfilled part or renew it upon cessation of the reason which previously made it unable to supply the Goods.

22) Colour Match

If you request us to match any shade or colour, then unless specified tolerances have been agreed between you and us, our normal colour quality standards and tolerances shall apply (as determined by us from time to time in our sole discretion).

23) Goods and Services Tax (GST)

(a) Unless otherwise stated, all prices quoted for Goods are exclusive of GST and we will charge GST on all invoiced items in accordance with the applicable rate at the time the invoice is prepared.

(b) All duties, taxes, imposts, fees or charges of any governmental, statutory or regulatory body applicable to the Goods are to be paid by you and will be added to the price of the Goods. You agree to indemnify us in respect of any claims for such duties, taxes, imposts, fees or charges.

24) Recovery of Costs

Notwithstanding the provisions of clause 16, all costs and expenses incurred by us (including solicitors costs on an indemnity basis) to remedy any breach by you of these terms and conditions shall be recoverable from you in addition and without prejudice to any other rights, powers and remedies held by us.

25) Acknowledgement

(a) The terms and conditions contained in the Agreement are reasonable and necessary to protect the legitimate interests of us;

(b) You have read and understand the conditions in the Agreement;

(c) No undue influence, pressure or unfair tactics were exerted in the formation of the Agreement;

(d) If you intend to sell the Goods outside of Australia, you must comply with expert specifications for such Goods; and,

(e) You must ensure that all advertising print or material and representations for the Goods either in print or electronic format are current at the time of publication by you.

26) Waiver

If at any time we do not enforce any of these Terms or grant you time or other indulgence, we shall not be construed as having waived that term or condition or our right to enforce that term or condition.

27) Severability

All clauses, words, phrases, sentences and paragraphs of these Terms are separate and independent, each being severable from the others. If any of them or any parts are declared void, invalid or otherwise unenforceable by any court of competent jurisdiction then they shall be deemed to be severed to the extent that they are void, invalid or unenforceable but the remainder of these Terms shall remain in full force and effect.

28) Jurisdiction

These Terms will be governed by and construed according to the law of Queensland, Australia and you and we agree to submit to the jurisdiction of the Courts and Tribunals of that State.

29) Privacy

(a) You acknowledge that under subsection 18E(8) of the Privacy Act 1988 (Cth), we may give a credit reporting agency certain personal information about you.

(b) You agree that we may seek and obtain from a credit reporting agency a credit report containing personal information about you pursuant to subsection 18K of the Privacy Act 1988 (Cth) in order to:

a. assess your creditworthiness;

b. notify other creditor providers of a default by you; or

c. exchange information with other credit providers as to the status of your account where you are in default with other credit providers.

(c) You agree that we may seek from a credit reporting agency information as to your creditworthiness, credit standing, credit history or credit capacity which the credit reporting agency is permitted to give pursuant to the relevant provisions of the Privacy Act 1988 (Cth).

(d) You agree that we may give to and seek from another credit provider, any information as to your creditworthiness, credit standing, credit history or credit capacity which the credit provider may be allowed to give or receive as permitted by the Privacy Act 1988 (Cth).

(e) You consent to the use by us, acting reasonably, of your business contact information provided by you for the following secondary purposes:

a. to conduct transactions with you;

b. to conduct marketing programmes;

c. to conduct customer satisfaction surveys;

d. to conduct promotional campaigns involving the sending of promotional material and provision of gratuities based upon performance;

e. to verify or confirm any information or details concerning you;

f. to answer or handle any queries complaints or matters raised by third parties;

g. for use by related companies and body corporates of ours;

h. for use by advertising agencies, direct mail houses, or other such business houses; and

i. for use by contractors and agents.