NIDAC
COMPANY
BRANDS

NIDAC Pty Ltd – Standard Terms of Trade

These are the standard terms under which NIDAC Pty Ltd ACN 004 933 242 (NIDAC) will supply goods and/or services to you (You, Your) as its customer.

  1. Each purchase request of any description (including a purchase order, counter sale or online sale; each an order) placed by You constitutes an offer to acquire goods and/or services from NIDAC. Placement of an order, either verbally or in writing or by conduct, shall be deemed to constitute acceptance by You of these terms, except as otherwise expressly agreed in writing by NIDAC, and to the express exclusion of all other terms and conditions (including any terms and conditions contained in any order or document of Yours).

  2. Only acceptance of an order by NIDAC shall constitute the formation of an agreement (which shall be deemed to incorporate these terms); and such acceptance by NIDAC may be written, oral or evidenced by NIDAC supplying goods and/or services to You, whether with or without an accompanying invoice.

  3. You will be charged for goods and services in accordance with Your then current price list, as provided by NIDAC. This may include minimum order quantities, minimum order values, price breaks, administration charges and freight arrangements, all of which are deemed to be incorporated into these terms.

  4. If you have not been provided with a price list by NIDAC, then you will be charged our then current retail prices.

  5. If You have a pre-approved account with NIDAC, Your invoices are payable in full within 30 days of the invoice date. In all other cases, all NIDAC invoices are payable upon receipt and goods will not be released until the invoice is paid in full.

  6. Payments by You are made free of any set-off, or counterclaim and without deduction or withholding.

  7. If payment is not made in accordance with these terms and (where applicable) Your agreed credit terms with NIDAC, NIDAC may do any of the following:

    1. withdraw any credit;
    2. refuse any further credit;
    3. withhold or refuse to supply goods and/or services to You; and
    4. charge interest on all amounts owing by You on a daily basis at the rate of 15% p.a. and You agree to pay this interest to NIDAC.

  8. Any costs, fees (including cheque dishonour fees) and expenses including any legal or debt collection agency costs incurred by NIDAC in connection with any overdue amount shall be recoverable as a debt immediately due to NIDAC by You and in the case of legal costs on a full indemnity solicitor-client basis.

  9. Prices do not include any special pre-assembly or programming, warehousing or freight unless negotiated and explicitly stated in the quote. NIDAC may impose an additional charge for such items, in accordance with its then current rates.

  10. Upon placing an order with NIDAC, You are deemed to confirm and accept the correctness of: product suitability, part names, quantities, prices, delivery details and the date the order is required to be picked up from our Burwood Vic office.

  11. You are responsible for ensuring the products ordered are suitable for their intended use by You and/or Your customer. NIDAC is not liable for any products You order which are unsuitable for Your or Your customer’s intended use.

  12. Any costs incurred by NIDAC in reliance on incorrect or inadequate information provided by You in an order may result in the imposition of an additional charge.

  13. NIDAC will work with You to suggest the suitability of Your requested products. However, the ultimate responsibility rests with You. You acknowledge and agree that there have been no representations or conduct giving rise to any understanding other than that which has been expressly recorded in writing. You agree that it is not reasonable for You to (and You will not) rely on any representation or conduct that is not acknowledged in writing by NIDAC.

  14. After order acceptance, changes and cancelations require the written consent from an authorized NIDAC representative.

  15. Preconfigured, customized and/or special ordered products cannot be cancelled or returned and must be paid for in full regardless.

  16. Return requests are subject to our standard returns process.

  17. Where NIDAC has provided a quote:

    1. any quote given by NIDAC will only be valid if provided in writing;
    2. the NIDAC quote number must be included in Your purchase order;
    3. the pricing and description of the goods and/or services are valid until the quote expiry date, which shall be 30 days from the date of the quote or otherwise as set out in the quote. After the expiry date a revised quote can be requested;
    4. the availability of products is current at the time of quoting, but is subject to change without notice. In the event that a product becomes unavailable, NIDAC will endeavour to source a suitable substitute product;
    5. prior to receipt of any order NIDAC may amend a quote;
    6. quotes made by NIDAC shall not be construed as an offer or obligation to supply in accordance with the quote. NIDAC reserves the right to accept or reject, at its discretion, any order received by it;
    7. NIDAC shall not be bound by any quote, if it forms the view that the subject matter of the quote is to form part of a larger transaction or series of transactions with You and those or any other circumstances have materially changed;
    8. You will pay any reasonable charges NIDAC claims for holding any goods referred to in any quote pending placement of an order;
    9. any quote given by NIDAC is provided on an E&OE basis.

  18. Project pricing is subject to the following requirements:

    1. NIDAC will deem the suitability of any submitted project to attract project pricing;
    2. minimum project sizes and requirements apply, as determined by NIDAC;
    3. the project cover page document must be completed by You before project pricing is given;
    4. signed approval from You and an authorized NIDAC representative;
    5. project product supply is to be done in one drop unless otherwise negotiated.

  19. NIDAC accepts no responsibility or liability for products being changed, withdrawn from sale or being unavailable by other suppliers.

  20. You represent and warrant that You have obtained all permits, licences, registrations and other approvals required by every national, local or municipal government or agency, in respect of the use and re-supply of all goods supplied by NIDAC.

  21. Certain goods are covered by an end customer warranty, a copy of which is included with each product or available on the relevant supplier’s website. The end customer warranty runs in favour of the end customer. The end customer warranty period begins on the date indicated on the product. NIDAC may require that You provide proof of purchase by the end customer before honouring the warranty.

  22. In these terms “intellectual property” means trade marks, patents, copyrights, circuit layouts, designs, geographical indications, and confidential information as may be applicable to NIDAC and its products and to any advertising and promotional material and any technical materials, user manuals or other materials associated with the supply of the products.

  23. You must not (without NIDAC’s consent):

    • a. use intellectual property for any purpose other than these terms;
    • b. register or use any of the intellectual property as part of Your corporate name, business name or trading name;
    • c. do anything concerning the intellectual property which might lead to its dilution or which might cause confusion or deception to the public concerning the origin of the rights which are the subject of the intellectual property;
    • d. use any business or trading name which is similar to any name forming part of the intellectual property or which is capable of being confused with any name forming part of the intellectual property;
    • e. disclose any confidential information forming part of the intellectual property to any person.

  24. Risk in goods passes to You immediately upon delivery to, or collection by, You or Your agent or a carrier commissioned by You.

  25. Until all money due and payable by You to NIDAC (including money owing in respect of other transactions between NIDAC and You) has been paid in full to NIDAC, all legal and beneficial title to goods shall remain with NIDAC. You hold the goods as NIDAC’s fiduciary, bailee and agent and the goods must be kept separate and readily identifiable as NIDAC’s goods. If any goods belonging to NIDAC are sold or otherwise disposed of then You shall hold the proceeds on trust for NIDAC. You acknowledge and agree that NIDAC shall have a security interest which attaches over any goods that You have not paid for in full. You consent to the registration and perfection of the interest set out in this clause for the purposes of the Personal Property Securities Act 2009 (Cth)(PPSA).

  26. Defined terms in this clause have the same meaning as given to them in the PPSA. You acknowledge and agree:

    1. that these terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (PMSI) in favour of NIDAC over the goods supplied or to be supplied to You as Grantor pursuant to these terms and that the Goods supplied or to be supplied under these terms fall within the PPSA classification of “Other Goods”;
    2. that NIDAC as Secured Party, is entitled to register its Security Interest in the Goods supplied or to be supplied to You as Grantor under these terms on the PPSR as Collateral;
    3. to the extent permissible at law, You:
      1. waive Your right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by You, as Grantor, to NIDAC;
      2. agree to indemnify NIDAC on demand for all costs and expenses, including legal costs and expenses on a solicitor-client basis, associated with the:
      3. agree that nothing in sections 130 to 143 of the PPSA relating to enforcement by NIDAC of any Security Interest created or provided for herein will apply to these terms or the Security under the Terms;
        1. registration or amendment or discharge of any Financing Statement registered by or on behalf of NIDAC; and
        2. enforcement or attempted enforcement of any Security Interest granted to NIDAC by You;
      4. waive any rights You may have under sections 95, 118, 121(4), 123, 129, 130, 132(3)(d), 132(4), 135, 142, 143, and 157 of the PPSA.

  27. LIMITATION OF LIABILITY

    1. CERTAIN LAWS IMPLY TERMS, CONDITIONS AND WARRANTIES INTO CONTRACTS FOR THE SUPPLY OF GOODS OR SERVICES AND PROHIBIT THE EXCLUSION, RESTRICTION OR MODIFICATION OF THOSE TERMS, CONDITIONS AND WARRANTIES (PRESCRIBED TERMS). ALL PRESCRIBED TERMS ARE EXPRESSLY INCLUDED IN THESE TERMS. ALL OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED INTO THESE TERMS, ARE EXCLUDED.
    2. SOME PRESCRIBED TERMS PERMIT A SUPPLIER TO LIMIT ITS LIABILITY FOR A BREACH THEREOF. EXCEPT AS PROVIDED BY PRESCRIBED TERMS, NIDAC’S LIABILITY IN RESPECT OF A BREACH OF A PRESCRIBED TERM RELATING TO THE SUPPLY OF ANY GOODS OR SERVICES SUPPLIED BY NIDAC TO YOU IN CONNECTION WITH THESE TERMS OR THE GOODS AND/OR SERVICES SUPPLIED BY NIDAC IS LIMITED, AT NIDAC’S OPTION, TO THE REPLACEMENT OR REPAIR OF THE GOODS, RESUPPLY OF THE SERVICES OR PAYMENT OF THE COSTS OF REPLACING OR REPAIRING THE GOODS OR RESUPPLYING THE SERVICES.
    3. SUBJECT TO CLAUSE 27(a):
      1. NIDAC’S MAXIMUM AGGREGATE LIABILITY IN RELATION TO ANY CLAIM, LOSS OR DAMAGE, WHETHER ARISING UNDER OR IN RELATION TO THESE TERMS, ANY TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) OR UNDER COMMON LAW OR STATUTE, IS LIMITED TO THE AMOUNTS ACTUALLY PAID BY YOU TO NIDAC IN THE 3 MONTHS IMMEDIATELY PRIOR TO THE RELEVANT EVENT OCCURRING;
      2. NIDAC WILL NOT BE LIABLE TO ANY PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR OTHER LOSS OR DAMAGE, INCLUDING LOSS OF PROFIT OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY OTHER INDIRECT LOSS OR DAMAGE WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OR THE PERFORMANCE OF THESE TERMS;
      3. NIDAC WILL NOT BE LIABLE FOR ANY AMOUNTS THAT MIGHT HAVE BEEN EARNED BUT FOR ITS INABILITY, FAILURE OR DELAY TO PROVIDE GOODS AND/OR SERVICES TO ANY PERSON OR IN THE EVENT OF DISCONTINUATION OF THE GOODS AND/OR SERVICES FOR ANY REASON (EVEN IF DUE TO ITS DEFAULT);
      4. YOU SHALL FULLY INDEMNIFY NIDAC IN RESPECT OF ANY CLAIM BY ANY THIRD PERSON, RELATING TO ANY GOOD OR SERVICE SUPPLIED BY NIDAC TO YOU.
    4. YOU ASSUME ALL LIABILITY FOR ANY ACTS OR OMISSIONS OF YOUR PEOPLE AS IF THEY WERE YOUR ACTS AND OMISSIONS.

  28. All aspects of these terms (including their construction, validity and performance) are governed by the law of the State of Victoria, Australia. The parties select the courts and tribunals of the State of Victoria, Australia as the forum for the settlement of any dispute that arises under the agreement constituted by these terms and the parties submit to the exclusive jurisdiction of such courts and tribunals.

  29. Nothing in these terms creates a relationship of employment, agency, partnership or joint venture between the parties or appoints You as agent of NIDAC for any purpose whatever. You have no authority or power to bind NIDAC or to contract in the name of and create a liability against NIDAC in any way or for any purpose.

  30. Any provision which by its nature would survive termination or expiry of these terms (including without limitation protection of NIDAC’s intellectual property and confidential information and any exclusion or limitation of liability or indemnity in these terms) shall survive termination or expiry of the agreement constituted by these terms.

  31. These terms contain the entire understanding and agreement between the parties as to its subject matter. All previous discussions, negotiations, understandings, representations, guarantees, warranties (other than warranties set out in these terms), or commitments in relation to the subject matter of these terms are superseded by these terms and shall be of no force or effect whatever and no party shall be liable to any other party in respect to those matters. No oral explanation or information provided by any party to another shall affect the meaning or interpretation of these terms or constitute a collateral agreement, warranty, term or understanding between the parties.

  32. If any clause or part of these terms is held to be void, illegal or unenforceable for any reason, it shall be deemed to be severed from these terms without affecting any other clause or part of these terms.

  33. NIDAC may vary these terms from time to time. The current version of these terms may be found at www.nidac.com. You should review (and shall be deemed to have reviewed) these terms prior to placing each order with NIDAC

  34. Once a contract has been formed in accordance with these terms, that contract may only be varied, supplemented or replaced by a written document executed by the parties.

  35. You must promptly do whatever is reasonably required (including the doing of acts and the signing of documents) to give effect to these terms and to perform Your obligations under these terms.

  36. All notices which are required to be given under these terms must be in writing and must be sent to the address of the recipient provided to the other party or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or e-mail. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when the e-mail enters the recipient’s mail server (if sent by e-mail).

  37. The forbearance on the part of a party from exercising any right under these terms (including without limitation any right to suspend or terminate all or any part of these terms) on the first date a party is entitled to do so shall not constitute any waiver of that party’s rights under these terms.

  38. Each person who signs a document (including an order) on behalf of a party warrants to the other party that he or she is duly authorized to sign the document in that capacity. You warrant to NIDAC that You will only permit Your authorized representatives to execute or purport to execute any document on Your behalf.