Terms and Condition

AGREEMENT FOR SALETHIS AGREEMENT is made between OSTEN GLOBAL PTY LTD ABN 93 156 355 725 of 2/53 Elm Park Drive, Hoppers Crossing in the State of Victoria (“Osten Global”) AND the person(s) or company whose name and address is set out in the Schedule, (“the Purchaser”)WHEREAS

(a)        Osten Global is a supplier of mobile (phone/tablet etc) accessories, parts, devices and other products audio devices accessories and other electronics (“the goods”).

(b)        The Purchaser wishes to utilise or buy and Osten Global wishes to provide services or sell the goods by orders placed by the Purchaser with Osten Global from time to time.

(c)         Osten Global has agreed to sell and the Purchaser has agreed to purchase the goods and services on the terms and conditions set out in this Agreement.

NOW THE PARTIES AGREE as follows:

Agreement to Buy and Sell

1.1       In consideration of the payment of the amount specified in relation to each of the services and/or goods as invoiced from Osten Global to the Purchaser from time to time (“the price”) Osten Global shall sell and the Purchaser shall purchase the goods on the terms and conditions of this Agreement.

1.2       In the event that the grant of any credit, account or facility is made pursuant to the terms of this Agreement, then such grant, credit or facility may be extended, increased, reduced or cancelled (without written notice) by Osten Global in its absolute discretion notwithstanding any limit amount specified in the Application or subsequently notified and also without any affect or consequence to any Guarantee and Indemnity given to Osten Global.

1.3       In the event that Osten Global serves notice in terms of paragraph 1.2 of this Agreement then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee shall continue and apply mutatis mutandis to the amended arrangements.

Placement of Orders

2.1       The Purchaser must order the goods from Osten Global in writing (“the Order”) and each Order shall:

2.1.1.          Be dated with the date of its lodgement;

2.1.2.          Specify precisely the goods ordered.

2.2       Osten Global will not be bound by any terms or conditions expressed in the Order or otherwise except to the extent that such terms shall have been expressly agreed between the parties in writing and signed by Osten Global.

Acceptance of Orders

3.1       Osten Global may in its absolute discretion decline to accept any Order without providing a reason and without giving notice and, without limiting the foregoing, may do so in the event that the Purchaser is outside its credit arrangements or is otherwise in default under this Agreement.

The Purchaser and Cardholder must pay on an indemnity basis all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause or any such similar clause in a guarantee and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
Osten Global may make a recording in relation to this charge on the Personal Property Securities Register.

5.4       Osten Global may, at it’s discretion, apply any amount payable by it on another account towards payment of any liabilities under this Agreement.

Passing of Title – Personal Property Securities Act 2009 (PPSA)

6.1       Title to the goods constituting an Order shall pass to the Purchaser free of encumbrance and all other adverse interests upon payment in full by the Purchaser of all outstanding indebtedness of the Purchaser to Osten Global being received by Osten Global. You shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Osten Global.

6.1a     The Purchaser hereby acknowledges that these Terms and Conditions of Trade in this Agreement for Sale constitute a Security Agreement which creates a Security Interest in favour of Osten Global and in all Goods including services previously supplied by Osten Global to the Purchaser (if any) and all after acquired Goods including services supplied to the Purchaser by Osten Global to secure the payment from time to time and at a time, including future advances. The Purchaser agrees to grant to Osten Global a Purchase Money Security Interest.

6.1b     The Purchaser give Osten Global a Security Interest in all of the Purchaser present and after-acquired property in which Goods including services supplied or financed by Osten Global have been attached or incorporated.

6.1c      The Purchaser acknowledges and agrees that by agreeing to these Terms and Conditions of Trade, the Purchaser grants a Security Interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to Osten Global and in all Goods including services previously supplied by Osten Global to The Purchaser and these Terms and Conditions of Trade shall apply notwithstanding anything express or implied to the contrary contained in the Purchaser purchase order. The Purchaser additionally agree that Osten Global can without notice to the Purchaser seek Registration of its Security Interest as a purchase money security interest on the Personal Properties Security Register (PPSR) and under the PPSA.

6.2       The Purchaser hereby appoints Osten Global as the Purchaser’s attorney to secure performance of the Purchaser’s obligations under this Agreement including but not limited to a power to enter upon the Purchaser’s premises or any other premises, warehouse, storage facility at which Osten Global’s goods may be stored for the purposes of taking possession of those goods in the event that the Purchase is in default of clause 5 or in the event that an administrator, liquidator or trustee in bankruptcy is appointed to the Purchaser of the Guarantor.

6.3       In the event that the purchaser on sells or arranges for Osten Global to deliver the goods to a third party prior to payment in full by the purchaser of all outstanding indebtedness of the purchaser to Osten Global being received by Osten Global, it is

in respect of any subsequent default and no indulgence of forbearance by Osten Global of its rights under this Agreement shall adversely affect or prejudice its rights in relation to such default or any subsequent default.

Rotation of Goods

10.1     In the event the Purchaser is unable to sell any non-electrical Goods within 6 months of delivery (Unsold Goods), Osten Global may in its absolute discretion agree to accept the Unsold Goods back provided the Unsold Goods are in same conditions as it were at the time of delivery.

10.2      The Purchaser may at it own cost with prior consultation with Osten Global arrange to have the Unsold Goods delivered to such location as may be directed by Osten Global.

10.3     Upon receipt of the Unsold Goods by Osten Global, Osten Global shall provide a credit note to the Purchaser for the price of the Unsold Goods which will be calculated as follows:-

–           the price published for such Unsold Goods in the latest catalogue published by Osten Global of such goods; or

–           If the Unsold Goods are of the line of products that are discontinued, the price of such Unsold Goods that was charged by Osten Global in the last invoice issued in respect of such products.

10.4     The Purchaser agrees that the credit note could only be used for purchasing any other Goods from Osten Global.

10.5      The purchasers agrees that it will not be entitled to cash refund for any Unsold Goods.

Applicable Law

11.1     This Agreement is made at 2/53 Elm Park Drive Hoppers Crossing in the State of Victoria and shall not be concluded until an executed copy thereof is received by Osten Global.

11.2     The parties expressly agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Victoria whose courts shall have exclusive jurisdiction to hear and determine any dispute arising therefrom.

11.3     An electronic version of this Agreement will be deemed produced and subject to any applicable Electronic Transaction Act or Regulation.

Director, Cardholder and Purchaser’s Warranties

12        The Cardholder, Purchaser and, in the event that the Purchaser is a corporate entity, each director and office bearer of the Purchaser, separately warrants that:

12.1     In the case of a natural person, he has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act or otherwise assigned his assets for the benefit of creditors.

12.2     It has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fail due.

12.3     He is not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to him by or on behalf of Osten Global whether in answer to an enquiry or otherwise.

12.4     Prior to the placement of any Order, he has made his own independent enquiries and satisfied himself as to the quality and fitness for purpose of the goods and, to the extent permitted by law, Osten Global makes no warranty, promise or representation in relation to the goods, either expressly or impliedly and any warranties, terms and conditions in relation to the state, quality or fitness of the goods for any purpose, whether implied by use, statute or otherwise is, to the extent permitted by law, hereby excluded.

Osten Global Relies on Director, Cardholder and Purchaser’s Warranties

13.1     In entering into this Agreement, Osten Global relies upon the warranties provided above and upon the information supplied by the Purchaser in the Account Application which accompanies this Agreement.

13.2     Osten Global relies upon the representation that the person signing this Agreement has authority to execute it on behalf of the Purchaser described in the Schedule.

Guarantee and Indemnity
by Director(s), Owner(s), Trustee(s) and Cardholder

17        In consideration of Osten Global agreeing to supply goods and/or services or to grant or extend credit or other financial accommodation pursuant to any agreement, or arrangement or transaction (all hereinafter severally and collectively referred to as “agreement”) to the Purchaser, the Director(s), Owner(s), Trustee(s) and Cardholder agree to provide this ongoing Guarantee to Osten Global upon the following terms and conditions:
The Director(s), Owner(s), Trustee(s), and Cardholder unconditionally guarantees to Osten Global the due and punctual performance by the Purchaser of all the Purchaser’s obligations under each and every Agreement including, without limiting the generality of the foregoing, the payment by the Purchaser of all moneys, (which term includes, without limitation, principal, fees, interest and costs) payable or repayable3 (whether presently or in the future, actually or contingently) under each and every Agreement & Guarantee and the Director(s), Owner(s), Trustee(s) and Cardholder promises to pay to Osten Global on demand all moneys which the Purchaser defaults in paying under any Agreement including all moneys arising by way of costs, expenses, bank charges, losses or damages incurred by Osten Global arising from any default by the Purchaser under or relating to any Agreement.
As a separate and independent severable, agreement the Director(s), Owner(s), Trustee(s) and Cardholder agrees, as a primary obligation, to indemnify Osten Global against all costs, expenses, losses, charges, damages or liability being the amount which Osten Global would have otherwise been entitled to recover from the Purchaser.

(A separate more comprehensive Guarantee and Indemnity form may also be required)
I/we also acknowledge and agree in my/our capacity as Guarantor that the Guarantee and Indemnity that I/we may have previously given to Osten Global continues to secure any and all liabilities and obligations of the Purchaser/debtor.

3.1       Osten Global may, without prejudice to its other rights and remedies under this Agreement, impose a limit upon the amount to be charged to a credit card.Delivery of Orders

4.1       Osten Global will endeavour to despatch each Order which it has accepted within 3 business days to the address indicated on the Order or as otherwise agreed between the parties.

4.2       The Purchaser acknowledges that Osten Global uses third party courier service providers for delivery of goods and it has no control over the exact time frame for delivery of the Goods to the Purchaser.

4.3       In the event that any exclusion from liability contained in this Agreement is prohibited by any law, either presently existing or later enacted, then Osten Global’s liability shall be limited to the repair or replacement as the case may be of the damaged or missing goods and, on no account, is Osten Global liable for any non-economic or consequential losses which may accrue to the Purchaser by reason of any breach by Osten Global of the terms of this Agreement.

4.4       The Purchaser must notify Osten Global in writing of non-delivery within seven (7) days of the Order and, in the absence of such notice, the Purchaser hereby waives all of its rights under this Agreement in respect of those goods.

4.5       The Purchaser must notify Osten Global in writing, by facsimile or email transmission of any incomplete delivery or of the delivery of damaged goods within two (2) business days of the agreed date of delivery and, in the absence of such notice, the Purchaser hereby waives all of its rights under this Agreement in respect of those goods.

4.6       In the event that the Purchaser notifies Osten Global in terms of clause 4.5 above, the Purchaser agrees to provide to Osten Global or its nominated representative an opportunity to inspect the delivered goods and packaging in which it arrived for the purposes of Osten Global’s investigation into the circumstances.

Payment

5.1       The Purchaser must pay the price in relation to each Order or service-repair to Osten Global at 2/53 Elm Park Drive, Hoppers Crossing in the State of Victoria (or at such other place as may be notified by Osten Global from time to time) prior to despatch of the goods or, where a credit facility has been established, within either of – thirty (30) days of the date of invoice, or otherwise as shall be advised in writing by Osten Global from time to time.
For Payment-After-Delivery facility the invoices shall be paid within seven (7) days of the date of invoice.

5.2       The Purchaser agrees to pay to Osten Global an account Service Fee of 1.5 per cent per calendar month or any part thereof in relation to any invoices which are not paid strictly in terms of this Agreement (with minimum fee $10.00, plus GST)

5.3       For better securing payment of the price plus any costs or charges, the Purchaser and Cardholder hereby charges all his real and personal property whatsoever in favour of Osten Global and appoints Osten Global as his attorney with authority to execute a caveat, charge, encumbrance or other instrument over the property and lodge for registration at the appropriate office.

The purchaser’s intention that Osten Global’s retention of title to the goods pursuant to this agreement supersedes any separate retention of title agreement between the purchaser and the third party and that title to the goods remains with Osten Global.

6.4       Any time that Osten Global may be instructed by the purchaser to deliver the goods to a third party and not the purchaser itself, it is the intention of Osten Global and the purchaser that possession of the goods remains with the purchaser for the purposes of this agreement until Osten Global receives payment in full of all accounts due to Osten Global by the purchaser.

Passing of Risk

7          Risk in each Order shall pass to the Purchaser upon delivery of the Order to the Purchaser or its agent, client or courier as the case may be.

Term and Amendment

8.1       This Agreement shall commence on the day it is made and may be terminated by either party giving written notice to the other, provided however that Osten Global may terminate the Agreement without notice in the event that the Purchaser is in default of clause 5 or commits an act of insolvency which shall include the appointment of an external administrator or controller, liquidator or trustee in bankruptcy to the Purchaser of the Guarantor.

8.2       Osten Global may assign or otherwise transfer any of its rights under this Agreement.

8.3       The Purchaser may not without the prior written consent of Osten Global (which consent may not be unreasonably withheld) assign or otherwise transfer any of its rights or obligations under this Agreement.

8.4       Osten Global may amend the terms of this Agreement at any time by giving notice by mail, facsimile or email transmission. Thereafter, the Purchaser, by placing any further Order, shall be deemed to have accepted the terms as amended.

8.5       Osten Global may insert, change or correct minor anomalies in The Schedule including (but not limited to) names, ABN or CAN.

Defaults and Rights

9.1       In the event of a default of payment as provided in clause 5 hereof, the whole of the amount due to Osten Global (“the outstanding balance”) becomes immediately due and payable and the Purchaser must pay forthwith on demand the outstanding balance together with all legal and collection costs and expenses associated with recovery of the outstanding balance on an indemnity basis (including any collection agent fees or commission).

9.2       The certificate of a Director or the Credit Manager of Osten Global shall, in the absence of evidence to the contrary, be conclusive as to the amount of the outstanding balance.

9.3       No failure or delay of Osten Global to exercise any right contained herein or to insist on strict compliance by the Purchaser of any obligation hereunder and no custom or practice of the parties which is at variance with the terms hereof and no waiver by Osten Global of any particular default by the Purchaser shall affect or prejudice Osten Global’s rights

Information, Privacy Act 1988

14        The Purchaser, Directors and Cardholder agree that Osten Global may from time to time for assessment, ongoing management and debt collection, seek, advise, exchange and verify any personal consumer or commercial information with any government entity, mobile phone or accessory/electronics distributor, service provider (or agent), credit assessor, credit reporting agency, credit provider or trade reference named in any account application or a report issued by a credit reporting or assessment agency and carry out any further pertinent investigation about the Purchaser’s, Director’s or cardholder’s contact/address details, credit, arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status, etc.

14.1     Agreement that Osten Global may seek consumer credit information (Section 18K (1)(b), Privacy Act 1988).
If Osten Global considers it relevant to asse3ssing my/our/the Purchaser’s application for commercial credit, I/we personally agree to Osten Global obtaining from a credit reporting agency a credit report containing personal credit information about me/us in relation to commercial credit provided by Osten Global.

14.2     Exchanging information with other credit providers (Section 18N(1)(b), Privacy Act 1988).
I/we personally agree to Osten Global obtaining personal information about me/us from other credit providers, whose names I/we may have provided for Osten Global or that may be named in a credit report, for the purpose of assessing my/our/the Purchaser’s application for commercial credit made to Osten Global.

14.3     Agreement to a credit provider being given a consumer credit report to collect overdue payments on commercial credit (Section 18K 1(h) Privacy Act 1988)
I/we personally agree that Osten Global may obtain a consumer credit report about me/us from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by me/us/the Purchaser.

14.4     Trade references may be requested on behalf of Osten Global by associated company.

Credit Card Authorisation

15.1     The Purchaser, Owner(s), Director(s) and Cardholder hereby irrevocably authorise the ongoing debiting of all Order amounts, costs and fees to any credit card (including company-employee issued cards), details of which have been provided or will be provided pursuant to this or a previous agreement or arrangement, for all liabilities under this Agreement (plus relevant surcharge).

15.2     I/we undertake to provide Osten Global with new card expiry details at expiry of current card.

Goods and Services Tax (GST)

16       GST will be charged to all relevant Goods and Services, including but not limited to all stock, services, costs, fess and freight charges.