Terms and Conditions of Trade

1. Definitions and Interpretation

1.1 Definitions

The following words have these meanings in these terms and conditions unless the contrary intention appears:

Additional Amount Holds the same meaning as that term is defined in clause 16.
Confidential Information Means any information, which is not in the public domain, which the Supplier makes available to the Customer (or the Customer’s officers, employees or agents) including but not limited to:
1. Terms and conditions of any documents drawn for the purposes of the Supplier’s Goods;
2. Details of the financial arrangements between the Supplier and the Customer;
3. Details of the Supplier’s intellectual property including business names, copyright material, trade marks or designs;
4. Any combination of the above information in documents or otherwise;
5. The corporate structure of the Supplier and any of its related or associated corporations;
6. Details of the Supplier’s related parties and associates and details of the Supplier’s shareholders and directors; and
7. Arrangements and agreements with third parties including, but not limited to, details of the Supplier’s suppliers.
Costs Includes all costs incurred by the Supplier in supplying and delivering the Goods to the Customer including, without limitation, all solicitors’ fees (on a solicitor and own client basis), commercial agents’ commission, freight and delivery charges, insurance, loss of profit and interest calculated in accordance with clause 11(b).
Credit Account Means an account maintained by the Customer with the Supplier under which the Supplier from time to time may supply credit to the Customer for the purchase of Goods pursuant to clause 14.
Customer Means the customer described in the Order and/or Invoice.
Event of Default Means, that any of the following has occurred:
1. A provisional liquidator is appointed to the Customer or a petition or an application is presented or an order is made or an effective resolution is passed or a meeting is summoned or convened for the purpose of considering a resolution for the winding up or dissolution without winding up of the Customer or the Customer is placed into liquidation;
2. A receiver or a receiver and manager or an administrator or controller is appointed over the Customer or any assets of the Customer;
3. An encumbrancer takes possession of any property of the Customer or any part of such undertaking or property;
4. The Customer ceases or threatens to cease to carry on its business or is unable to pay its respective debts or permits execution to be levied against any of its assets for an amount in excess of $2,000.00 and such execution is not stayed or satisfied within fourteen (14) days;
5. The Customer enters into any arrangement, reconstruction or composition with any of its creditors or proposes to do so;
6. The Customer charges, mortgages or otherwise encumbers all or any of its assets or purports to charge, mortgage or otherwise encumber those assets;
7. In the sole opinion of the Supplier exercised in its sole and absolute discretion, the Customer is carrying on a business at a loss and further prosecution of such business will endanger the ability of the Customer to repay monies owing to the Supplier;
8. Without limiting the operation of the events referred to in paragraphs (a) to (g) above, the Customer proposes or enters into some other form of insolvency or administration whether voluntary, formal or informal;
9. An event or series of events, whether related or not or whether as a result of the fault of the Customer or not, results in any material adverse change in the financial condition of the Customer which has or is in the opinion of the Supplier likely to have a material and adverse affect on the ability of the Customer to repay any money that it owes to the Supplier;
10. The Customer defaults in the performance of any of its obligations under these terms and conditions; or
11. If the Customer is an individual, any act of bankruptcy of the Customer or if the Customer dies or is permanently incapacitated.
Goods Means any goods supplied by the Supplier to the Customer on whatever basis and if applicable, as described in the relevan Order or Invoice.
Invoice Means any invoice for the Goods supplied by the Supplier to the Customer.
Mixed Goods Means any goods (including goods owned by third parties or the Customer) with which the Goods have been mixed or which the Goods have formed a component of.
Order Means any order for Goods placed by the Customer with the Supplier.
Outstanding Amounts Means all amounts due and payable by the Customer to the Supplier including the Purchase Price for any Goods supplied to it by the Supplier and all Costs and Taxes, which the Customer is liable to pay to or on behalf of the Supplier.
PMSI Means Purchase Money Security Interest as defined in section 14 of the PPSI.
PPSA Means the Personal Property Securities Act 2009 (Cth) and regulations.
Proceeds Means the definition of proceeds contained in section 31 of the Personal Property Securities Act 2009 (Cth).
Purchase Price Means the price for Goods supplied by the Supplier to the Customer as stated on the Invoice to the Customer, plus any GST payable by the Customer pursuant to clause 16, but does not include the Costs and the Taxes.
Register Means the Personal Property Securities Register as referred to in Chapter 5 of the PPSA.
Registrar Means the Registrar of the Personal Property Securities Register as referred to in section 146 of the PPSA.
Supplier Means Vital Diamonds International Pty Ltd (ABN 41 093 243 979) and includes its employees, contractors, agents, successors and assigns.
Taxes Means any Additional Amount in respect of any Order and all present and future government or semi-government taxes (excluding GST), levies, duties, imposts, deductions, charges, compulsory loans and withholdings together with any applicable interest, penalties and expenses for which the Supplier may be liable as a result of any Order and/or Invoice.

1.1 Interpretation

In these terms and conditions, unless the contrary intention appears:

Words importing the singular will import the plural and vice versa;
A reference to any gender will be deemed to be a reference to all genders;
A reference to these terms and conditions, means an agreement reached on the terms and conditions contained in this document;
Any headings have been provided for ease of reference only and shall not be used in the interpretation of these terms and conditions;
If any provision in these terms and conditions is held to be invalid or unenforceable in whole or in part, such provision will be severed from these terms and conditions and the validity of any other provision in these terms and conditions or of the remainder of the provision being severed will not be affected;
All powers, rights, remedies and authorities conferred upon the parties may be exercised on behalf of, and in the name of them from time to time by any of their respective authorised solicitors or attorneys from time to time either authorised to act for them generally or in a particular case;
Explanatory comments do not form part of these terms and conditions and are not legally binding;
A provision of these terms and conditions will not be interpreted against a party just because that party prepared the provision;
A reference to a clause, is a reference to a clause of these terms and conditions;
A reference to a clause includes a reference to a sub-clause;
A reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it;
A reference to these terms and conditions includes an amendment or supplement to, or replacement or novation of these terms and conditions;
A reference to a party to these terms and conditions or any other agreement includes that party's successor, permitted assign, employees and sub-contractors;
A reference to an agreement other than these terms and conditions includes an undertaking, agreement or legally enforceable arrangement or understanding whether or not in writing; and
A reference to a person or words denoting a person includes any company, statutory corporation, partnership, joint venture, association, board, government or semi-government agency or authority, and that person's successors and legal personal representatives.

2. Whole Agreement

These terms and conditions represent the entire agreement between the Supplier and the Customer and there are no other representations, promises, warranties, covenants or undertakings between the parties and these terms and conditions supersede all previous agreements in respect of its subject matter.
These terms and conditions will not be amended except by an instrument in writing signed by the Supplier and such amendments will not take effect until the Supplier sends notice of the amendments or a copy of these terms and conditions as amended to the Customer.

3. Orders

Subject to clauses 4, 5, 6 and 7, the Supplier may at its sole discretion supply the Goods to the Customer upon the receipt of an Order from the Customer.
The Customer agrees that if there is any dispute in respect of any Invoice or Order, then the records of the Supplier will be conclusive evidence of the contents of that Invoice or Order and the agreement between the Supplier and the Customer.

4. Payment

Subject to subclause (d), the Customer will pay the Supplier the Outstanding Amounts in respect of each Order on the payment terms as described in any Invoice which relates to that Order.
If an Invoice does not contain any description of the Supplier’s payment terms and/or the Customer has not been granted a Credit Account by the Supplier pursuant to clause 13, then the Customer will pay all Outstanding Amounts in respect of that Invoice before the Supplier is obliged to make the Goods available for collection by the Customer.
The Customer authorises the Supplier at the Supplier’s discretion to appropriate any money received from the Customer against any Outstanding Amounts which are due and payable by the Customer to the Supplier.
The Supplier may vary the Purchase Price, the Costs and the amount of the Taxes that the Customer is to pay in respect of any Order by notice in writing to the Customer until such time as the Supplier has paid all Outstanding Amounts in respect of the Order in full.

5. Consignment sales

Consignment sales are governed by the following additional terms and conditions of this clause, as well as all other clauses contained in these terms and conditions:

Goods will only be supplied to the Customer on a consignment basis if the Customer has been pre-approved by the Supplier in its absolute discretion to sell goods on consignment and only if the Supplier has specifically agreed in writing that the Goods are being supplied to the Customer on consignment;
Goods on consignment are available to be sold by the Customer for a maximum of (7) seven days;
Any Goods given to a Customer on consignment remain the property of the Supplier until payment of all Outstanding Amounts in respect of those Goods has been received from the Customer;
The Customer acknowledges that Goods on consignment are subject to clause 6; and
All Goods supplied to a Customer on consignment and not returned to the Supplier within (7) seven days will be invoiced and are deemed to have been sold to the Customer and cannot be returned by the Customer to the Supplier, but property in the Goods will not pass to the Customer until the Supplier has received payment in full of the Outstanding Amounts from the Customer and is otherwise subject to clause 6.

6. Retention of Title

Notwithstanding any other clause of these terms and conditions, in respect of each Order:

Property in the Goods will pass to the Customer only when the Supplier has received payment in full of the Outstanding Amounts from the Customer.
The parties agree that until the Supplier receives payment in full of the Outstanding Amounts from the Customer:
1. The Supplier retains title in the Goods and the Customer takes possession of the Goods as fiduciary agent and bailee of the Supplier;
2. The Customer may resell the Goods onto any third party but not a related or associated party as defined under the Corporations Act 2001, however, the Customer may not bind or place any obligation on the Supplier whatsoever in any agreement for the sale of those Goods;
3. Any Goods which are delivered to the Customer will be separately identified as property of the Supplier;
4. The Customer will hold in trust for the Supplier any proceeds which it receives from the sale of any Goods; and
5. To the extent that any of the Goods are Mixed Goods, the Customer will hold on trust the portion of any proceeds which it receives from the sale of any of those Mixed Goods that relates to the respective Goods and will keep those amounts in a separate bank account.
If the Customer fails to pay the Purchase Price for the Goods or any Outstanding Amounts in accordance with these terms and conditions or any Event of Default occurs, the Customer will:
1. Licence the Supplier to enter any premises where the Goods are located at any time in the absolute discretion of the Supplier and without prior notice;
2. assist the Supplier to retake possession of the Goods and/or Mixed Goods which remain the property of the Supplier; and
3. Not deal with the Goods or Mixed Goods in any way without the prior written consent of the Supplier.
This clause survives the termination of these terms and conditions.

7. Personal Property Securities Act arrangements

Acknowledgement of security agreement and security interest

The Customer acknowledges and agrees that:

The terms and conditions are a security agreement for the purposes of the PPSA;
The Supplier has a security interest in the Goods and any present or after acquired property that represents the proceeds of the Goods; and
The security interest secures all amounts owing by the Customer to the Supplier in connection with the relevant Goods under these terms and conditions.
The terms used in this clause seven 7 where the context permits, shall have the same meaning as the PPSA.

Acknowledgment of arrangements for financing statements

The Customer acknowledges and agrees as follows:

Financing statements and financing change statements

The Supplier may at any time register a financing statement (or, if relevant, a financing change statement) on the Register in relation to its security interest in the Goods that may include the terms that:

describe the Supplier as the “secured party” and the Customer as the ‘grantor’:
describe the Goods supplied by the Supplier to the Customer from time to time pursuant to these terms and conditions as collateral in the class of “other goods” (or such other class as the Supplier may reasonable determine is applicable to the Goods):
specifies that the security interest that the Supplier holds in the collateral is a PMSI in accordance with item 7 of the table in section 153(1) of the PPSA to the extent that it secure payment of the amounts owing in connection with that collateral; and
Specifies that the security interest affects Proceeds and, in particular, all present and after acquired property that represents Proceeds of the Goods.

Period of registration

The Supplier may register a financing statement or financing change statement on the PPSA Register for any period that the Company determines (in its discretion).

Payment of fees and costs

Upon request made by the Supplier, the customer must pay to the Supplier all fees, charges and expenses that the Supplier may reasonably incur in:

Preparing, lodging or registering any financing statement or financing change statement in relation to any security interest that is granted to the Supplier under the terms and conditions;
Maintaining any such registration; or enforcing any security interest granted to the Supplier under the terms and conditions.

These fees, charges and expenses may be incurred by or with an agent that acts on behalf of the Supplier.

Where registration is to be effected

The Supplier may register its security interest on the Register at any time so long as the Supplies believes on reasonable grounds that it will become a secured party in relation to the Goods including without limitation when the Customer signs or otherwise adopts or accepts the terms and conditions in a manner proposed by the Supplier.

Attachment

A security interest in Goods created according to the terms and conditions will attach to the Goods at the time that the Customer obtains possession of them and not at any later time.

Do all things necessary

The Customer must do anything reasonably required by the Supplier to enable the Supplier to register the security interest as a PMSI and to maintain that registration.

Separate financing statement may be registered if required

If the Supplier considers that it has or may have a security interest that is not a PMSI in relation to any Goods, it may register a financing statement in respect of that security interest (and that financing statement may be in addition to a financing statement registered by the Supplier in relation to a PMSI in the same Goods).

Confidential Information

The Supplier and the Customer agree that neither party will disclose to an interested person or to any other person, any information of the kind described in section 275(2) of the PPSA expect that the Supplier may disclose that information to an interested person where section 275(7) of the PPSA applies.
The Customer agrees that it will not authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.

Enforcement

If the Customer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply of the Goods, the Customer agrees that the Supplier shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitation) the rights contained in section 123 of the PPSA to seize the Goods by any method permitted by law. For these purposed, and without limiting any other rights of the Supplier under the PPSA as a secured party, the Customer further agrees:

Upon demand made by the Supplier, to immediately deliver up the Goods to the Supplier;
To irrevocably authorise the Supplier to enter the premises occupied by the Customer in order to search for, retrieve and remove those Goods to which the Supplier has title and which are the subject of the security interest as provided for by these terms and conditions
To do all things necessary to immediately facilitate the Suppliers access to the Customer’s premises and to assist the Supplier to locate and identify the Goods;
to authorise the Supplier to resell the Goods seized and apply the proceeds of sale in payment of any monies that the Customer owes it;

Notices

Notices

The Customer agrees that the Supplier does not need to give the Customer any notice under the PPSA (including without limitation a notice of a verification statement received from the Registrar) unless the notice is required by the PPSA and that requirement cannot be excluded.

Where default

In the event of a default by the Customer in performing of any of its obligations in connection with the supply of Goods under the terms and conditions, the Customer agrees that (as between the parties to the terms and conditions) the Supplier is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Goods.

8. Delivery and Risk

If the Supplier ships the goods to the Customer, the Customer will pay for the freight associated with the delivery of the Goods by the Supplier to the Customer.
The Customer assumes all risk in respect of the Goods from the time the Goods are received by the Customer and/or its nominee, agent employee or representative.
The Customer will properly insure the Goods with a reputable insurer approved by the Supplier, for the time that the Goods are in the possession, custody or control of the Customer until the Customer has paid the Supplier all Outstanding Amounts in respect of those Goods and, the amount of such insurance must be for the minimum of the value of the Purchase Price of those Goods and any further Outstanding Amounts in respect of those Goods.
The Customer must, at the request of the Supplier, produce a certificate of currency evidencing that the Goods are insured by the Customer, whilst the Goods are in possession of the Customer.
Any claims by the Customer that the Goods supplied by the Supplier do not fulfil the Order must be notified in writing to the Supplier within seven (7) days of the supply of the Goods.
The Supplier will not be bound to accept any return of the Goods by the Customer unless the return is authorised in writing by the Supplier and, only if those Goods are returned to the Supplier at the expense of the Customer using any third party transport operator as nominated by the Supplier and are returned to the Supplier in their original condition.

9. Right to Supply

The Supplier reserves the right to accept or decline in whole or in part at any time, any Order made by the Customer for the supply of Goods.
Notwithstanding that the Supplier has accepted an Order in whole or in part, the Supplier may, at any time before the fulfilment of that Order, refuse to supply that Order or any part of that Order to the Customer.
Each Order is subject to the Supplier having the Goods available to fulfil that Order.
The Customer agrees that time is not of the essence for delivery, however, time for payment of all Outstanding Amounts is of the essence.

10. Limitation of Liability

The Supplier gives no express warranty in relation to the Goods or supply of the Goods and the Customer acknowledges that it has not relied on any representation or warranty made by or on behalf of the Supplier in relation to the Goods or their supply.
Any warranties or conditions implied by law, either by statutory instrument or otherwise, are expressly excluded to the extent that such warranties and conditions in respect of the Goods may be lawfully excluded.
To the extent permitted by law, if the Supplier is or becomes liable to the Customer in any manner whatsoever for breach of warranty or in relation to the supply of any defective Goods, then the Supplier’s liability shall be limited solely to the Purchase Price paid by the Customer for such Goods or the cost of their repair or re-supply, whichever the Supplier so elects.
The Customer acknowledges that the Goods provided by the business are subject to statutory requirements. The Customer acknowledges that it has undertaken its own independent enquiries in reaching its decision to purchase the Goods.
The Customer acknowledges that no warranties and/or representations have been made in relation to the quality, size, capacity, use, performance, adequacy or suitability of the Goods and that it has relied upon its own inspection in making the decision to purchase the Goods.

11. Cancellation

The Supplier reserves the right to cancel any trading arrangements at any time and in its absolute discretion, without prior notice to the Customer.

12. Default

Notwithstanding any other clause of these terms and conditions, if the Customer breaches any of these terms and conditions:

The Customer will indemnify and continue to indemnify the Supplier for all Costs associated with remedying the Customer’s breach of any of the Terms and Conditions of Trade; and
All Outstanding Amounts will be immediately due and payable to the Supplier without the requirement of any notice to the Customer.

As a result of any breach by the Customer of any of the Terms and Conditions of Trade, interest shall accrue on all such unpaid amounts and costs at the rate indicated on the face value of the Appro/Invoice, compounded daily from the date of the relevant Appro/Invoice.

13. Financial Information

The Customer irrevocably authorises the Supplier to seek and use any reports from a credit reporting agency of its choosing containing personal information about the Customer in relation to the collection of any Outstanding Amounts from the Customer to the extent allowed by law.
The Customer consents to the Supplier giving any information relating to the collection of any Outstanding Amounts to any Credit Reporting Agency to the extent allowed by law.
The Customer will provide any and all necessary instructions and/or authorities required by the Supplier’s accountants, debtor insurers, and bankers to enable the Supplier to make investigations from time to time into the Customer’s trading and financial position.

14. Pledge

Any goods (including the Goods) which are the property of the Customer and which are placed in the possession of the Supplier by the Customer, are pledged to the Supplier and the Supplier, if not paid in full for any goods or services rendered to the Customer, has the right to deal with the Customer’s goods in any way whatsoever.

15. Credit Accounts

The Supplier may, at its sole and absolute discretion, grant to the Customer a Credit Account in respect of each Invoice.
If the Customer is granted a Credit Account, then the Customer agrees that:

The Supplier may at any time and its absolute discretion by notice in writing, withdraw the use of the Credit Account from the Customer.
The Customer must pay all monies owing under that Credit Account to the Supplier within seven (7) days of receiving the notice in subclause (b)(1).

Subject to subclause (b), the Customer will pay all monies owing under any Credit Account to the Supplier within thirty (30) days of the date of the Invoice to which that Credit Account relates.
Any monies not paid to the Supplier within the time specified in subclause (c) in respect of each Credit Account will incur interest in accordance with clause 12(b).
If there is any conflict between subclause (c) and the terms of payment on any Invoice to which a Credit Account relates, then subclause (c) will prevail.
The obligations of the parties in subclauses (b)(2), (c), (d) and (e) survive the termination of these terms and conditions.

16. Confidential Information