ASSET SUPPLY TERMS AND CONDITIONS
Asset Supply Terms and Conditions (Terms)
1. Definitions and interpretation
“Assets” means any equipment, assets or other goods the subject of these Terms.
“Business Day” means a day other than a Saturday or Sunday and any public holiday declared in Australia or the specific service region.
“Confidential Information” means confidential information of a Party and includes information whether verbal, written or in some other form, including but not limited to electronic form relating to the Services; knowledge or information regarding the business transactions, affairs, property, policies, processes or activities of a Party; any document which is marked confidential; and any document, tangible item or information which a Party advises the other Party is confidential or which the other Party knows or ought to know is confidential.
“Diminished Value Matrix” means a document provided by Industry Trading to Supplier (as varied by Industry Trading from time to time) detailing the method for calculating deductions from the purchase price of Assets to account for damage and other issues with the condition of Assets.
“Force Majeure Event” means without limitation any insurrection or civil disorder, war or military operations, terrorist act, national or local emergency, acts or omissions of any Governmental Authority, compliance with any statutory, regulatory or legal obligation, severing by a third party of international telecommunications facilities outside Australia, fire, earthquake, lightning, explosion, flood, subsidence, weather of exceptional severity, closure of transport or shipping lanes or any other cause outside a Party’s reasonable control.
“Goods Received Advice” or “GRA” means a report generated by Industry Trading which details the Assets received by Industry Trading from Supplier. A GRA may include specifications, quantities, details and the condition of the Assets along with the Assets’ value calculated with reference to an applicable Diminished Value Matrix.
“Industry Trading” means (as the case may be) Industry Trading Pty Ltd ATF Industry Trading Unit Trust (having Australian Business Number 84 675 175 616), Industry Trading Pte. Ltd. (having Singaporean Unique Entity Number 201910623Z) or Industry Trading USA LLC (having Californian Entity Number 201505410178).
“Party”/“Parties” means Industry Trading, Supplier or both, as applicable.
“Purchase Offer” means an offer made by Industry Trading to purchase Assets from Supplier.
“Purchase Price” means the price to purchase Assets as detailed in a Purchase Offer.
“Supplier” means the person that offers Assets for inspection and/or sale to Industry Trading.
The following rules of interpretation shall apply unless the text otherwise dictates:
- Headings are for convenience only and do not affect the interpretation of the underlying text.
- The singular includes the plural and vice versa.
- Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
- The words ‘such as’ and ‘including’ and similar expressions are not used as nor are they intended to be interpreted as words of limitation.
- A reference to:
- A person means a natural or legal person of any type or form.
- An item includes a part of that item.
- A Party includes its successors and permitted assigns.
- A clause, term, schedule or attachment is a reference to a clause or term of, or schedule or attachment to these Terms.
- These Terms includes all Annexures, schedules and attachments to it.
- Applicable law includes any relevant legally binding decree, law, Ministerial decision, regulations, rule, order, by‐law, ruling, decision or directive issued by a Governmental Authority or Court, and, in each case is a reference to that applicable law as amended, consolidated or replaced.
- When the day on which something must be done is not a Business Day, that thing must be done on the following Business Day.
2. Asset purchases
Purchase Offers are made subject to the Assets being inspected by Industry Trading (“Inspection Basis”) unless otherwise stated in advance by Industry Trading in writing.
Where a Purchase Offer is made on an Inspection Basis, Industry Trading may at its discretion make deductions from the Purchase Price to account for any defects, faults or damage in condition, functionality or operability of the Assets (“Deductions”). Deductions are made with reference to the GRA(s) on which the Assets are listed, and where a Diminished Value Matrix applies in accordance with that Diminished Value Matrix. For the avoidance of doubt, the absence of an applicable Diminished Value Matrix does not prevent Industry Trading from making Deductions.
- For Inspection Basis purchases:
- Where Industry Trading has made payment of the Purchase Price prior to inspection, Supplier will reimburse Industry Trading for the amount of any Deductions.
- Where Industry Trading has not made payment of the Purchase Price prior to inspection, Supplier will issue Industry Trading with an invoice for the amount equalling the sum of the Purchase Price less the amount of any Deductions.
- Supplier warrants that all Assets listed in the Purchase Offer are the Assets delivered to or collected by (as the case may be), Industry Trading.
- For the avoidance of doubt Industry Trading is under no obligation to make any Purchase Offer.
- In the event that Supplier delivers Assets to Industry Trading without notice and Industry Trading decides not make a Purchase Offer, Supplier will at its own cost and expense immediately remove the Assets from Industry Trading or its agents’ premises. Should Supplier fail to remove the Assets or the Parties agree that Industry Trading should return the Assets, Industry Trading will return the Assets to Supplier and Supplier will reimburse Industry Trading for the costs and expenses incurred in that return.
3. Title and risk
- Unless otherwise agreed between the Parties, title in Assets passes from Supplier to Industry Trading upon payment of the Purchase Price and Supplier warrants that on that date it owns the Assets free and clear of any security interest, encumbrances or any third party rights whatsoever, and that Supplier is capable of passing full, valid and unimpeachable legal and beneficial title in the Assets to Industry Trading.
- Notwithstanding clause 3(a), risk in Assets passes from Supplier to Industry Trading upon Industry Trading taking custody, control or delivery of Assets, including where Industry Trading takes delivery of Assets for the purposes of inspection prior to payment of the Purchase Price.
- Except where Supplier engages Industry Trading by prior written agreement to erase data from Assets, Supplier warrants that Assets do not hold any data (whether such data is of a “personal” nature or otherwise for the purposes of privacy legislation) (“Data Warranty”).
- Where Supplier is in breach of its Data Warranty then Supplier will defend, hold harmless and indemnify Industry Trading from any and all claims, damages, costs (including legal costs), liabilities and governmental or regulatory action (including any third party claims and liabilities) arising as a consequence or result of, that breach (“Data Indemnity”).
- Without creating any obligation on Industry Trading to investigate whether Assets hold data or to investigate whether Supplier has breached its Data Warranty, where Industry Trading discovers that Supplier has breached its Data Warranty in relation to any Assets:
- Supplier consents to Industry Trading at its discretion erasing the data from the Assets (using any data erasure method Industry Trading sees fit to use) without any further reference to Supplier and Supplier undertakes to pay Industry Trading the costs of so doing (without limiting in any way the operation of the Data Indemnity).
- Industry Trading will not be responsible or liable (either to Supplier or any third party) for the loss of any such data. It is the Supplier’s sole responsibility to maintain a recoverable backup of data, and Supplier will defend, hold harmless and indemnify Industry Trading under the Data Indemnity in relation to any such loss of data from Assets.
- Where Industry Trading erases data from Assets other than pursuant to an engagement with Supplier made by prior written agreement, Industry Trading will not be responsible or liable for any failure or part failure to erase data from Assets, and Supplier will defend, hold harmless and indemnify Industry Trading under the Data Indemnity in relation to such failure to erase data from Assets.
5. Duty of confidentiality
- A Party to these Terms must not disclose to any third party, without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed), Confidential Information provided by the other. This obligation does not extend to information which: is or becomes public knowledge without the fault of the receiving Party; is or becomes available to the receiving Party from a source other than the disclosing Party; is independently developed by the receiving Party; or is required to be disclosed to its professional advisers, bankers or financial advisers.
- A receiving Party may disclose information necessary to conform to all applicable laws and regulations and prior to disclosure must notify the other Party with full details of the circumstances of the required disclosure and of the relevant information to be disclosed.
- Supplier will comply with Industry Trading’s reasonable privacy policies as communicated in writing by Industry Trading to Supplier from time to time.
7. Supplier information
- Industry Trading may require Supplier to provide information in order for Industry Trading to fulfil its obligations under these Terms.
- Supplier attests that any information it provides to Industry Trading is true, accurate and complete. Supplier agrees to inform Industry Trading in writing of any change to any information provided within 14 days.
- Industry Trading will protect and respect Supplier’s information and will not collect, use, retain, or advertise any such information without Supplier’s prior written approval and subject to applicable law.
- In addition to the Data Indemnity, Supplier agrees to defend, hold harmless and indemnify Industry Trading from any and all claims, damages, costs (including legal costs), liabilities and governmental or regulatory action (including any third party claims and liabilities) relating to a breach of the Contract by Supplier.
- These Terms, each Purchase Offer and the GRA constitute the entire agreement (“Contract”) in relation to the Supplier’s supply of Assets to Industry Trading under that Purchase Offer and supersede all prior understandings, arrangements and agreements between Industry Trading and Supplier.
- For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of Supplier shall apply to or form part of Contract, except and to the extent otherwise agreed in writing by Industry Trading.
- Industry Trading may revise, amend or cancel the Terms (“Revised Terms”) at any time and by any of the following: giving Supplier notice by mail or e-mail; or by posting Revised Terms on Industry Trading’s public website. By continuing to accept Purchase Offers, Supplier agrees that any and all resulting Contracts will be governed by the Revised Terms.
10. Consequential Loss
- Other than the Supplier’s liability under its Data Indemnity, no Party shall be liable to the other Party for any indirect, incidental, special or consequential loss or damage which arises out of the performance or failure to perform any obligation contained within or connected to the Contract, whether the claim is in contract, tort (including negligence), strict liability or otherwise.
- In the event of any provision of these Terms becoming invalid, illegal or unenforceable due to the operation or introduction or modification or amendment of any existing or future law, such provision deemed invalid, illegal, or unenforceable shall be deemed to be severed from the other provisions of these Terms, and such invalidity, illegality or unenforceability shall not affect the remaining provisions of these Terms, and the remaining provisions shall be valid and remain in force.
- An amendment or variation of any term of the Contract must be in writing and signed by Industry Trading and Supplier.
- A failure, delay, or indulgence by a Party in exercising any power or right conferred on the Party by these Terms does not operate as a waiver of the power or right. A waiver of a breach does not operate as a waiver of any other breach.
14. Force Majeure
- Other than payment obligations, neither Party will be liable for any delay or failure to perform its obligations under these Terms if such delay is due to an event of Force Majeure. As soon as a Party becomes aware that the performance of its obligations may be affected by Force Majeure that Party must give the other Party written notice of the circumstances and the anticipated delay. If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds thirty (30) days from the date the obligation was required to be performed, either Party may immediately terminate the Contract on providing written notice to the other Party.
15. Survival of obligations
- The obligations of confidentiality, privacy and supplier information referred to in clauses 4, 5, 6 and 7 respectively shall survive the termination of the Contract.
16. Independent contractors
- The Parties are independent contractors. No Party shall be considered the agent, distributor, licensee or franchisee of the other Party for any purpose whatsoever. No Party shall have any authority to enter into any contract, assume any obligations, or make any warranties or representations on behalf of the other Party. Nothing in these Terms shall be construed to establish a partnership or joint venture relationship between the Parties.
17. Applicable law
- The Contract shall be governed by and construed in accordance with the laws of the state of New South Wales in Australia, and the courts of the state of New South Wales in Australia and courts of appeal therefrom shall have exclusive jurisdiction to hear and decide any dispute.
- Any notice to be given to Supplier shall be deemed to be given upon its being posted or sent by facsimile or email to Supplier’s last known address, facsimile number or email address. Notice will be deemed to be effective upon receipt by Supplier or three days from the date of posting or sending, whichever occurs first. Notices to be given to Industry Trading may be given to Industry Trading at the addresses specified below or at such other address as Industry Trading notifies Supplier from time-to-time.
Industry Trading Pty Ltd
4 Ford Street,
Huntingwood NSW 2148
- Industry Trading at its sole discretion may sub-contract the performance of the Contract or part thereof to any other third party as Industry Trading may at its sole discretion determine.