TERMS OF TRADE
Except as may be expressly stated
otherwise, including, in a written quotation or proposal submitted by Bodyline
Imports Pty Ltd ABN 55 158 647 002 (Bodyline) to the Customer, or a
written contract of sale signed by Bodyline, these Terms of Trade (Terms)
apply to every sale of goods or services (Products) by Bodyline to any
Customer. Bodyline may accept or decline all or any part of a Customer’s
request to purchase Products in its absolute discretion.
All prices published and Products offered
for supply by Bodyline are subject to change without notice. The Customer
should check the price of Products before placing an order for it. Prices
quoted are, unless otherwise stated, exclusive of goods and services tax (GST)
and are valid for delivery of Products within 14 days of the date on which the
Customer communicates an offer to purchase Products to Bodyline. Prices quoted
for delivery of Products are EXW (“Ex Works” Incoterms® 2010).
If GST is imposed on any supply made by Bodyline,
the Customer must pay to Bodyline, in addition to any consideration payable or
to be provided by Customer for this supply, an additional amount for the supply
calculated by multiplying the prevailing GST rate by the consideration for the
relevant supply payable or to be provided (without any deduction or set off).
Any amount payable by Customer is payable on demand by Bodyline, whether such
demand is made by an invoice raised by Bodyline or otherwise.
4.1 The Customer acknowledges that:
(a) certain Products may not be available to
Customers located outside supplier prescribed territories; and
(b) the delivery and transportation of certain Products
may be subject to prescribed safety restrictions or limitations.
4.2 Any date given to the Customer by Bodyline
for delivery of Products shall be an estimate only, and, although Bodyline
shall use commercially reasonable endeavours to meet such delivery date, Bodyline
shall not be subject to or incur any penalty or liability for any claim, loss,
damage or obligation, direct or indirect, consequential or otherwise, arising
out of any delay in delivery or non-delivery regardless of the reason.
4.3 If for any reason Bodyline is unable to
deliver Products either within a reasonable time or at all, the applicable
purchase order and/or contract of sale shall be cancellable, in full or only as
to certain Products, at Bodyline’s option, and neither Bodyline nor the
Customer shall be subject to or incur any penalty or liability for any claim,
loss, damage or obligation, direct or indirect, consequential or otherwise,
arising out of such cancelation.
4.4 Delivery is completed in relation to each
instalment of an order when Bodyline hands over all of the Products in the
instalment to a carrier for transmission to the Customer; or completes loading
all of the Products in the instalment at the nominated delivery location for
transmission to the Customer; or places all of the Products in the instalment
at the Customer’s disposal at the delivery location. Such delivery shall be
deemed to be acceptance of Products by the Customer, regardless of whether the
Customer is present at the time of delivery to inspect the Products and sign a
4.5 Disposal of all shipping pallets, containers,
and packaging becomes the responsibility of the Customer upon delivery.
4.5 If the Customer has contracted Bodyline to
install Products at the Customer’s premises, the Customer shall, at its
expense, ensure that the installation site is ready, and has been prepared in
accordance with agreed specifications, on the date agreed for installation of
the Products; and that adequate and safe power and lighting is available at the
installation site which is readily and safely accessible to Bodyline’
technicians. The Customer will be responsible to provide Bodyline’s technicians
with such induction/site training as is appropriate and which the Customer
deems reasonably necessary having regard to the nature of the services to be
provided by the technicians. The Customer will indemnify Bodyline for any
additional costs incurred in connection with the installation if the site is not
available in the specified condition.
5.1 If the Customer has not been granted a line
of credit with Bodyline, the Customer must pay to Bodyline the invoiced amount
for the Products, including any associated delivery and administration charges,
plus GST, at the time the Customer places the order, selecting one of the
payment options available. The Customer indemnifies Bodyline for any loss
suffered by Bodyline if a charge to a bank or other account is not honoured.
5.2 If the Customer has been granted a line of
credit with Bodyline, the Customer must pay to Bodyline the invoiced amount for
the Products, including any associated delivery and administration charges,
plus GST, within thirty (30) days of the end of the month during which the Products
5.3 If the Customer commits any act of
insolvency, all money owing by the Customer to Bodyline, whether by way of
credit or otherwise, will become due and payable immediately. Bodyline reserves
the right to suspend, with or without notice, any deliveries of Products if any
payment due by the Customer to Bodyline is overdue. A
late payment fee of 8% per annum, calculated daily, (being a genuine
pre-estimate of the loss suffered by Bodyline because of the Customer’s failure
to make timely payment) may be charged on overdue amounts. The Customer will reimburse Bodyline, on a full indemnity basis, all
costs incurred by Bodyline as a consequence of a charge to a bank or
other account or a cheque not being honoured, and to
its collection agents and/or lawyers in relation to the collection of any
moneys owed to Bodyline that are not paid when due.
RISK AND Title
6.1 The risk of loss of, or damage to, the
Products will pass to the Customer on delivery to the Customer or its nominated
6.2 Title to any Products delivered to the
Customer will not pass to the Customer, and the Customer must keep the Products
separately stored and marked as the property of Bodyline, until the Customer
has paid all amounts that it owes to Bodyline in full (including the purchase
price for the Products).
6.3 Bodyline only consents to the Customer
selling or otherwise disposing of the Products in the ordinary course of the
Customer’s business to bona fide customers and unrelated third parties on arm’s
length terms, while no default is subsisting.
6.4 The Customer must not do any of the following
in relation to any of the Products except where expressly permitted by these
(a) create or allow any
interest in, or dispose or part with possession of, the Products;
(b allow the Products to be
taken outside Australia;
(c) allow the Products to become
an accession to or commingled with any other property; or
(d) grant any security interest
in respect of accounts owed to it in relation to the Products, without Bodyline’s
prior written consent.
6.5 If the Customer sells or
disposes of any Products, or uses the Products in the creation or delivery of
other goods or services, the Customer will hold the proceeds of sale or
disposal, or such part of the price of the Products used in the creation or
delivery of other goods or services, on trust for Bodyline to secure payment of
any amounts the Customer owes Bodyline for the Products. The Customer must pay
all monetary proceeds, up to the amount owed, into a separate account until
they are paid over to Bodyline and must not mix them with any other amount or
use them to pay a debt.
6.6 The Customer grants Bodyline
and its representatives an irrevocable licence to enter any land or premises
for the purpose of inspecting, seizing or otherwise enforcing Bodyline’s rights
in respect of Products under these Terms, and indemnifies Bodyline for any
claims for damage to property or personal injury as a result of exercising
those rights. If Bodyline seizes or retakes possession of any Products, it may
deal with them as it thinks fit.
6.7 If Products include or are supplied with
software, the Customer is granted only a limited license to use such software
with such Products, and ownership of and title to such software shall not pass
7.1 The Customer waives its right to receive any
notice (including notice of a verification statement) that is required by the Personal
Property Securities Act 2009 (Cth) (PPSA) unless the notice is required by the
PPSA and cannot be excluded.
7.2 The Customer agrees not to exercise its
rights to make any request of Bodyline under section 275 of the PPSA. However,
this does not limit the Customer’s rights to request information other than
under section 275 of the PPSA. Neither the Customer nor Bodyline will disclose
any information of the kind mentioned in section 275(1) of the PPSA unless
section 275(7) of the PPSA applies.
7.3 To the extent permitted by law, the parties
contract out of and the Customer waives its rights under sections 95 (to the
extent that it requires Bodyline to give a notice to the Customer), 96, 121(4),
125 ,130 (to the extent that it requires the Supplier to give a notice to the
Customer),132(3)(d), 132(4), 142 and 143 of Chapter 4 of the PPSA.
7.4 These Terms, alone or in conjunction with Bodyline’s
Credit Application, are a security agreement for the purposes of the PPSA. The
Customer acknowledges that it has granted Bodyline a security interest in the
Products and their proceeds which is a purchase money security interest to the
extent that it secures payment of all or part of the purchase price for Products.
7.5 The Customer acknowledges that it has also granted
Bodyline a security interest in commercial property, being all the Customer’s
present and after acquired property as security for all money owed by the Customer to Bodyline pursuant to these
Terms and all other obligations including future advances and costs.
7.6 The Customer consents to Bodyline perfecting
any security interest arising in connection with these Terms by registering a
financing statement on the Personal Property Securities Register (PPSR) and any
other applicable security registers in any manner it considers appropriate. The
Customer agrees to do anything Bodyline reasonably asks to ensure that the
security interest is enforceable, perfected, and otherwise effective; and has
priority over all other security interests.
7.7 The Customer agrees to pay or reimburse Bodyline
for any fees or charges for the PPSR or other registrations contemplated by these
7.8 The Customer must notify Bodyline at least 14
days before it changes its name; changes its place of registration or
incorporation; or changes or applies for an Australian Company Number,
Australian Business Number, Australian Registered Body Number, or Australian
Registered Scheme Number under which an interest in any of the Products is or
will be held. The Customer must notify Bodyline if anything mentioned in above
occurs immediately upon becoming aware of it.
7.9 Words and phrases used in this clause that
have defined meanings in the PPSA have the same meaning as in the PPSA unless
the context indicates otherwise.
Bodyline reserves the right to demand a
deposit for special orders of non-stock items or orders for the manufacture of Products
to the Customer’s specifications. Bodyline shall not be responsible for errors
in the Customer’s specifications. The Customer may not cancel special orders
without the written consent of Bodyline. Bodyline will not accept returns of Products
made to the Customer’s specifications unless defective.
The Customer must notify Bodyline, in
writing, within thirty (30) days of the date of the invoice of a claim for
credit for faulty or damaged Products or for Products incorrectly supplied.
Credit will not be given for notifications received by Bodyline outside this
period. The claim for credit should state the date and number of the invoice
and the reason for return. All returns are at the
discretion of Bodyline and must receive a Return Authorisation Number (RAN) in
advance of shipment. Products returned for credit are to be clearly
consigned to Bodyline and must, if the claim for credit is not based on the Products
being faulty or damaged, be in the original packaging and in a saleable and
undamaged condition. If the claim for credit and return is due to the Products
being faulty or damaged, or some fault of Bodyline, then Bodyline will bear the
cost of the return freight, otherwise the cost of return freight shall be borne
by the Customer.
10.1 The Products come with certain guarantees under
Australian Consumer Law. Bodyline warrants the Products to be free from defects
in materials and workmanship at the time of sale by Bodyline to the Customer. Except
as otherwise required by law the liability of Bodyline in respect of the
Products will be limited, at the election of Bodyline, to the repair or replacement
of the Products, or the supply of equivalent Products; or to payment of the
cost of the repair or replacement of the Products or supply of equivalent
10.2 To the fullest extent permitted by law all
terms, conditions, warranties and representations with respect to the Products
are hereby disclaimed and excluded and in no event shall Bodyline be liable for
any claims or damages relating to the combination of the Products with any
other goods; or for loss of time,
inconvenience, commercial loss, or incidental or consequential damages.
10.3 The Customer acknowledges that the Products may
be used in a variety of applications and that there will be no sale of Products
by sample. The Customer relies on its own knowledge and expertise, and not the
advice or assistance of Bodyline, to satisfy itself as to the Products’ fitness
for the purpose or intended use by the Customer.
10.4 Bodyline does not warrant the quality or
performance of Products used after the expiration of the Products’ prescribed shelf
life; or otherwise than in accordance specifications provided by Bodyline or
the Products’ manufacturers.
10.5 Bodyline shall incur no liability whatsoever
(including liability for any consequential financial loss suffered by the
Customer) for an inability to perform or a delay in performance of its
obligations in respect of the sale of the Products if that inability or delay
arises directly or indirectly from the happening of any event not within the
reasonable control of Bodyline.
11.1 An agreement between the parties may not be
varied without the prior written consent of Bodyline.
Terms are qualified by any law which applies, and which cannot be excluded. If
any provision of these Terms is deemed to be unlawful or unenforceable, such
provision shall be read down to the extent permitted or severed from these
Terms, unless the severance of the provision would materially affect or alter
the nature or effect of the obligations of the parties under these Terms,
without affecting the enforceability of the other provisions.
11.3 A failure or delay by Bodyline to exercise a
power or right under these Terms does not operate as a waiver of that power or
right, and the exercise of a power or right by Bodyline does not preclude its
future ability to exercise that or any other power or right.
11.4 Insofar as they apply to the ordering,
purchase, fulfilment and delivery of Products from Bodyline, these Terms are
governed by and must be construed according to the law of the State of New
South Wales, Australia and the parties submit to the jurisdiction of the courts
in that State.
11.5 No Bodyline employee or agent has the authority
to vary these Terms governing any sale.
Terms of Trade BOD Final 28jul20