Trading Terms

Active Outthere Terms and Conditions

1. 1. By accepting these Terms and Conditions in writing or by placing an Order, the Customer accepts, and is bound by, these Terms and Conditions.
   2. The Supplier appoints the Customer as a non-exclusive reseller of the Products in the Territory for resale to End Customers, subject to the following:
      1. nothing in this clause prevents the Supplier from appointing any other person as a reseller, distributor or agent of the Products in the Territory or elsewhere, selling the Products directly to End Customers or any other person (including in the Territory), or dealing with the Products in any way; and
      2. the appointment does not oblige the Supplier to accept any Order, to supply any minimum volume of Products, to maintain any particular product line, range or specification, or to guarantee any margin, volume or revenue to the Customer.
   3. For the avoidance of doubt, the Customer must not, without the prior written approval of the Supplier, sell to any third party any Products if it knows or ought to know that the third party:
      1. resides or is based outside of the Territory; or
      2. will resell any of those Products to any third party for the purpose of resale, trade or commercial use, including but not limited to the on-sale of those goods online, on the third party's own website or on other websites such as eBay, Gumtree, Amazon.com or Play.com.
   4. Any breach by the Customer of this clause 1 will result in the immediate termination of these Terms and Conditions on written notice to the Customer.
   5. These Terms and Conditions will apply to all Products sold by the Supplier to the Customer and will continue until terminated in accordance with clause 1.4 or clause 10 of these Terms and Conditions.

1. 1. Orders may be accepted or rejected by the Supplier in its sole and absolute discretion, and will only become binding on acceptance by the Supplier.
   2. The Customer may not cancel an Order without the Supplier's consent in writing. Any cancellation request may be refused or given at the Supplier's sole discretion and, when given, will be on condition that the Customer will compensate the Supplier for all loss that it may suffer as a result of the cancellation as determined by the Supplier in its discretion with supporting evidence of the loss. Without limiting the generality of the foregoing, the Supplier will be entitled to charge a cancellation fee equal to 30% of the value of the cancelled Order. Any proposed cancellation or adjustment of an indent order must be made a minimum of 3 months ahead of the scheduled delivery date.
   3. In addition to its other rights under these Terms and Conditions, the Supplier has the right to cancel or delay any Order at any time before the supply of the Products by giving written notice to the Customer. The Supplier will not be liable for any loss arising from such cancellation or delay. If the Supplier does not have the stock of a Product ordered by the Customer, the Supplier may:
      1. deliver that part of the stock which it has in stock and deliver the balance at a later date when the Supplier has the rest of the stock;
      2. cancel part or all of the Order; or
      3. deliver the entire Order when the Supplier has received the stock.
   4. Where more than 75% of the Product ordered by the Customer is not available, and will not be available within a reasonable period, the Customer may cancel the Order.
   5. All Products are offered for sale by the Supplier subject to availability to the Supplier of such Products.

1. 1. The Supplier will deliver the Products to the Delivery Point using its preferred freight provider. The Supplier may deliver the Products in any number of instalments as notified to the Customer.
   2. All delivery and freight will be charged for separately by the Supplier based on volume, timing, delivery location, ease of access, number of persons required to deliver the Products and whether or not an assembly service is required.
   3. Times quoted for delivery by the Supplier are given in good faith and are estimates only. The Supplier will not be liable for failure to deliver any of the Products arising from any cause beyond the Supplier's control. The Customer will not be relieved of any obligation to accept or pay for the Products by reason of any delay in delivery.
   4. If the Customer fails to accept delivery of the Products or give proper instructions to the Supplier for their delivery within seven (7) days after notification in writing that the Products are ready for delivery, the Customer will be liable to pay to the Supplier all reasonable costs for storage, protection and insurance of the Products after expiration of such seven day period. The Supplier reserves the right to store such Products at a location of its choosing.
   5. The Customer is responsible for ensuring there is safe and adequate access and entry to its premises to allow the delivery of Products. The Supplier must be notified at the time of Order of any vehicle height restrictions in underground car-parks which may preclude access by the Supplier's usual delivery trucks, and any access difficulties (including stairs, narrow passages, lift limitations, or the absence of lifts). The Customer is liable for all delivery charges, including additional charges arising from access difficulties under this clause.
   6. If a delivery is booked and needs to be re-scheduled a re-delivery fee may apply.
   7. Products will only be delivered if a person(s) aged over 18 years is able to accept delivery at the delivery address. Should an appropriate person not be available to accept delivery on the Delivery Date, the Customer will be charged for transport and re-delivery costs.
   8. Where the Customer, with the written consent of the Supplier, uses its own freight carrier, the Supplier will not be responsible for the Products damaged in transit by the Customer's nominated carrier and the Customer shall be responsible for insuring the Products against loss or damage during transit. In this case, risk in the Products will pass to the Customer on collection of the Products by the Customer’s nominated carrier.

1. 1. The Supplier will invoice the Customer for the Unit Price of the Products plus GST, freight and insurance costs at the time of despatch of the Products by the Supplier.
   2. The Supplier may from time to time, with or without notice to the Customer, revise the Unit Prices of some or all of its Products. The price payable for a Product is that in force as at the time of the Order for the Product is placed.
   3. The Customer must pay the Supplier as follows:
      1. if the Customer is an approved account customer, then the Customer must pay all the Supplier invoices within 30 days of the end of the month in which the Products are invoiced; or
      2. if the Customer is not an approved account customer, then the Customer must pay the Supplier as follows:
         1. 1. where an order for Products is placed for immediate delivery and the Supplier has the Products in stock, then payment in full is required upon confirmation of the total value of the invoice prior to the Products being dispatched; and
            2. in the case of a new Customer placing an indent order, the Supplier will contact the Customer and require payment prior to the Products being dispatched. The Supplier will not be held responsible for any Orders and may cancel any Orders on notice where this is not adhered to.
   4. If any invoice is not paid by the due date for payment, the Supplier may notify the Customer and the Customer will have five (5) Business Days from the date of that notification to pay the relevant invoice, failing which, the Supplier may, in addition to its other rights under the Terms and Conditions and at law, suspend all further deliveries of Products to the Customer until payment is made in full of the outstanding invoice or agreement is made and agreed by both parties.
   5. In addition to the Supplier's rights under these Terms and Conditions and at law, the amounts of invoices not paid in accordance with this clause 4 may incur interest at the rate of 15% per annum.
   6. The Customer will be liable for all costs incurred with the recovery of any unpaid invoiced amounts, including without limitation legal and collection agents fees, court costs, interest and the Supplier's fees for time incurred with the recovery process.
   7. The Customer is not entitled to set off against, or deduct from, the Unit Price or any sums owed or claimed to be owed to the Customer by the Supplier. If the Customer in good faith disputes any amount in an invoice, the Customer must:
      1. pay the undisputed portion of the invoice by the due date for payment; and
      2. notify the Supplier in writing within seven (7) days of the invoice date, specifying the disputed amount and the grounds for the dispute.
   8. The parties must use reasonable endeavours to resolve the disputed amount within ten (10) Business Days of the Supplier receiving a notice under clause 4.7(b), failing which either party may refer the dispute to be dealt with under clause 14. The Customer has no right to withhold payment of any amount not notified as disputed in accordance with this clause, and any amount not disputed in accordance with this clause is deemed accepted by the Customer as payable.
   9. The Supplier reserves the right to alter the price of Products, which will apply to any future Orders placed by the Customer.

1. 1. The Customer must:
      1. inspect the Products upon delivery;
      2. within seven (7) Business Days of the supply of any Products (time being of the essence), notify the Supplier of details of any alleged defect, damage or failure to comply with the Order description or law (Defect), or shortfall in delivery. This must be done by email to info@activeoutthere.com.au, and the Supplier will note any variance to standard;
      3. provide the Supplier with such photographic and other proof of the Defect or shortage in quantity to comply as may be requested by the Supplier, together with the Supplier's product details (item code or name) and the relevant invoice number;
      4. allow the Supplier to inspect the Defect or shortage within a reasonable time of receiving notification; and
      5. provide the Supplier's Product details (item code or name), invoice number and details of the Defect or shortage claimed.
   2. The Customer will be deemed to have accepted the Products free of Defect or shortage unless the Supplier receives a substantiated written claim within seven (7) days of the date the Supplier delivers.
   3. If a claim is made by a Customer, the Supplier will endeavour to contact the Customer within seven (7) Business Days along with photographs and other information required by the Supplier. The Supplier may then request further images or information relating to the claim in order for the Supplier to clearly identify/determine the Defect. The Supplier will not approve any claims that:
      1. result from transit damage, where the relevant Products were not freighted by the Supplier or the Supplier's approved freight companies/carriers;
      2. are due to the natural characteristic of the relevant Product. This information can be found on the Supplier's website or the Product manual. The Customer must comply with those instructions and must provide the relevant part of the instructions to each of its customers when they purchase a Product; or
      3. arise from the Customer’s act or omission, or breach of these Terms and Conditions, including the improper use or care of the relevant Product.
   4. No claim will be accepted unless first authorised in writing by an authorised officer of the Supplier and a Return Authority (RA) number has been provided. The RA number will need to be on any claim and return.
   5. If the Supplier, acting reasonably, accepts a claim by the Customer for a Defect (Approved Claim) the Customer must return the relevant Product(s) to the Supplier at its place of business if requested by the Supplier. The Supplier's maximum liability to the Customer will then be to:
      1. supply a replacement of the relevant Product(s);
      2. repair the relevant Product(s) and deliver them to the Customer; or
      3. refund to the Customer the cost of the relevant Product(s).
   6. Except in the case of any Approved Claim, the Supplier is under no obligation to accept any return of any Products sold to the Customer. Despite the foregoing, if the Supplier, in its discretion, agrees to accept any return of any Product which is not an Approved Claim:
      1. the Products must be returned to the Supplier in their original packaging (both internal and external) as originally delivered;
      2. initial delivery freight charges paid are non-refundable;
      3. freight charges paid for the return of the relevant Products must (unless otherwise agreed) be paid directly by the Customer or, if the return freight is arranged by the Supplier, must be paid by the Customer and deducted from the credit (if any due) to the Customer on the return of this stock; and
      4. the Supplier will be entitled to charge a re-stocking fee equivalent to 25% of the value of the returned Products to cover the additional administration and warehouse costs associated with the return of these items.
   7. If the Supplier elects to accept any return under clause 5.6, a credit will only be processed once the relevant Products are received at the above address, checked and found to be in a good and as new condition by the Supplier.
   8. Nothing in this clause 5 excludes, restricts or modifies any guarantee, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable law which cannot be excluded, restricted or modified by agreement.

1. 1. The Supplier warrants and represents to the Customer that:
      1. it has the legal right and power without obtaining the consent of any person or authority to enter into these Terms and Conditions and sell the Products; and
      2. to the best of the Supplier's knowledge, information and belief there are no existing, pending or threatened matters or circumstances which will remove, limit or otherwise affect the legal right or power to sell the Products, or the ability of the Supplier to provide the Products in accordance with these Terms and Conditions.
   2. The Customer warrants and represents to the Supplier that:
      1. the Customer has the legal right and power without obtaining the consent of any person or authority to perform its obligations under these Terms and Conditions;
      2. it is able to pay its debts as and when they fall due;
      3. it has all necessary rights, licenses, permits, and consents to perform its obligations under these Terms and Conditions and will comply with all applicable laws in doing so; and
      4. it will not do anything that may adversely affect the Supplier’s goodwill, brand, or reputation;
      5. to the best of its knowledge, information and belief there are no existing, pending or threatened matters or circumstances which will remove, limit or otherwise affect its legal right or power to perform its obligations under these Terms and Conditions; and
      6. it must comply with all instructions provided by the Supplier to the Customer regarding the care, handling and storage of the Products, including those instructions which may be viewed at http://www.activeoutthere.com.au/terms-conditions.php.
   3. The Customer acknowledges that no employee or agent of the Supplier, other than a director, is authorised to make or issue any statement, warranty or representation as to the Products. The Customer therefore shall not be entitled to rely or seek to rely upon any statement made or issued by an agent or employee of the Supplier other than a written statement by a director of the Supplier.
   4. The Products come with all warranties that cannot be excluded under the Australian Consumer Law. Where a valid claim is made under a statutory or other warranty (and if such warranty is not voided for any of the reasons set out in these Terms and Conditions or by operation of law), the Supplier will, at its option either:
      1. repair or replace the relevant Products or the affected part of them; or
      2. wholly or partially reimburse the Customer if the Products or part of them is defective.
   5. Any warranties implied by law will end immediately if the Products become defective or damaged as a consequence of misuse, lack of proper care and maintenance, commercial use, use within a commercial or rental environment or handling in transit.
   6. The Customer acknowledges that if the Customer purchases Products which are:
      1. sold as part of any clearance sale conducted by the Supplier;
      2. sold from the clearance section of the Supplier's premises or website; or
      3. formerly display or showroom items and have been discounted accordingly,

then such Products (irrespective of whether or not marked as clearance or display or showroom items) shall be sold in their as is condition and, to the extent permitted by law, no warranty of any nature shall apply to those Products.

1. 7. To the extent permitted by law, any warranties provided (whether provided by the Supplier or implied by law) do not apply if:
      1. the defect becomes apparent after the expiration of the relevant warranty period (or if there is no such period then after more than one (1) month after the date of the invoice);
      2. the Products have not been used or stored in accordance with instructions issued by the Supplier;
      3. the Products have been subject to any alteration or repair by any person other than authorised in writing by the Supplier. If the alteration or repair is unrelated to the defect then the warranty remains applicable;
      4. the Customer fails to notify the Supplier of its claim within seven (7) days of the defect becoming apparent and to return the Products to the Supplier on the Supplier's request to do so; or
      5. the Products have not been used for the purpose for which they were designed.

1. 1. Personal Information has the meaning given in the Privacy Act 1988 (Cth) (Privacy Act). The Supplier handles Personal Information in accordance with the Privacy Act and its Privacy Policy at www.activeoutthere.com.au (Privacy Policy), which forms part of these Terms and Conditions.
   2. The Supplier may collect, use and disclose Personal Information about the Customer and its personnel, directors and guarantors (each a Relevant Individual) for purposes connected with the supply of Products and the parties' dealings under these Terms and Conditions, including assessing credit, administering accounts, processing Orders and payments, verifying identity, managing the relationship, enforcing the Supplier's rights, and disclosure to related bodies corporate, service providers, credit reporting bodies, assignees and any person required or authorised by law.
   3. The Customer consents, and must procure each guarantor's consent, to the Supplier obtaining, using and exchanging credit information about the Customer or guarantor with credit reporting bodies and other credit providers for any purpose permitted under Part IIIA of the Privacy Act.
   4. Where the Customer provides the Supplier with Personal Information about any Relevant Individual or third party (including End Customers), the Customer warrants that it has done so in compliance with the Privacy Act and has obtained any consents and given any notices required for the Supplier to collect, use and disclose that information for the purposes set out in this clause 7, and the Customer indemnifies the Supplier against any Losses arising from a breach of this warranty.

1. 1. The Customer will at all times maintain and keep current a valid and enforceable insurance policy, with a reputable insurance company, against theft, damage and loss of the Product.
   2. The Customer agrees to provide the Supplier, if requested, with certificates of currency or other evidence satisfactory to the Supplier that the Customer has insurances referred to in clause 8.1.

1. 1. The Customer may not assign any of its rights or obligations under these Terms and Conditions without the prior written consent of the Supplier. The Supplier may assign its rights and/or obligations under these Terms and Conditions.

1. 1. These Terms and Conditions continue until terminated in accordance with this clause 10.
   2. Either party may terminate these Terms and Conditions or an applicable Order immediately by written notice to the other party (Relevant Party) if the Relevant Party:
      1. commits a material breach of these Terms and Conditions that is incapable of being remedied or is not remedied within 90 days (in the case of the Supplier) or within 7 days (in the case of the Customer) after being required in writing to do so;
      2. is unable to pay its debts as and when they fall due; or
      3. is or represents that it ceases to carry on business, is insolvent, has an administrator, liquidator or receiver appointed, or enters or threatens to enter into bankruptcy.
   3. The Supplier may terminate these Terms and Conditions at any time by giving the Customer 60 days' written notice.
   4. Without limiting clause 10.2, the Supplier may at any time suspend supply of the Products and the performance of its other obligations under these Terms and Conditions if any ground for termination under clause 10.2 exists, without liability to the Customer.
   5. On termination of these Terms and Conditions for any reason:
      1. the Supplier will stop supplying the Products to the Customer, except for Products that have been paid for under an Order prior to the termination notice;
      2. each party must, on request from the other, return any material or thing (including the other party's Intellectual Property Rights, Confidential Information and other materials) in the first party's possession or control;
      3. all amounts owing by the Customer to the Supplier (whether invoiced or not) become immediately due and payable, and the Customer must pay all invoiced amounts within 30 days of the date of invoice.
   6. Where termination is by the Supplier under clause 10.2, the Customer must pay the Supplier all reasonable costs incurred by the Supplier arising from or in connection with the termination.
   7. Termination of these Terms and Conditions does not affect any rights, remedies or obligations that have accrued before termination, and clauses dealing with payment, intellectual property, confidentiality, indemnity, limitation of liability and any clause which by its nature is intended to survive, survive termination.

1. 1. Each party agrees to keep the other party’s Confidential Information secret and safe, and not use it or disclose it to any person (or allow anyone else to do so) without the other party’s written consent, except to the extent necessary to:
      1. comply with these Terms and Conditions;
      2. obtain professional advice in relation to these Terms and Conditions; and
      3. comply with applicable law, provided that the other party is given reasonable notice of the required disclosure. 
   2. The parties hereby acknowledge that unauthorised disclosure or use of the other party's Confidential Information could cause irreparable harm and significant injury to the other party that may be difficult to ascertain.  Accordingly, the parties agree that the injured party will have the right to seek and obtain immediate injunctive relief to enforce obligations under these Terms and Conditions in addition to any other rights and remedies it may have.

1. 1. The Customer acknowledges that the Supplier is the exclusive licensee of the Products in the Territory.
   2. The Supplier grants to the Customer the right, under a sublicence, to use the Product names, images, product information, catalogues, marketing material, technical specifications, and any other Product material provided by the Supplier to the Customer (Product IP) for the purpose of reselling the Products to the End Customers in the form and format as directed by the Supplier, provided that the Customer makes truthful and accurate representations of the Product.
   3. The Supplier may direct the Customer to take down, delete, or remove any marketing that incorporates the Product IP or references the Product, and the Customer must comply immediately with any such direction.
   4. If the Customer does not pay the Unit Prices in full, any licence to use any branding, marketing material, or work product including the Product IP will terminate and the Customer will be required to return all original and copies of such to the Supplier within seven days of being requested to do so.
   5. The Customer must not use any images of the Products, whether sourced/downloaded from the Supplier's website or obtained by other means, to sell the Products on-line without first obtaining the written approval of the Supplier.
   6. The Customer must not engage in any search engine optimisation which in any way reduces the exposure or visibility of the Supplier, or other suppliers of the Product, on google.com or any other search engine.

1. 1. If a Force Majeure Event affecting either party precludes the affected party from partially or wholly complying with its obligations under these Terms and Conditions then as soon as reasonably practicable after that Force Majeure Event arises, the affected party must notify the other party as to the following:
      1. the Force Majeure Event;
      2. which obligations the affected party is precluded from performing (Affected Obligations);
      3. the extent to which the Force Majeure Event precludes the affected party from performing the Affected Obligations; and
      4. the expected duration of any delay arising directly out of the Force Majeure Event.
   2. Subject to compliance with clause 13.1, the obligations of the affected party will be suspended during the continuance of the Force Majeure Event.
   3. Either party may terminate these Terms and Conditions on written notice to the other party where a Force Majeure Event continues for more than thirty (30) Business Days.

1. 1. Neither of the parties may start court proceedings in respect of a dispute arising out of or in connection with these Terms and Conditions unless it has complied with this clause.
   2. A party claiming that a dispute has arisen must notify the other party giving details.
   3. During the 5 day period after a notice is given under clause 14.2 (or longer period agreed in writing) senior executives of the parties must use their best efforts to resolve the dispute by negotiation.
   4. If the dispute is not resolved under clause 14.3, the dispute must be referred for mediation, at the request of any of the parties, to:
      1. a mediator agreed on by the parties; or
      2. if the parties are unable to agree on a mediator within seven days of the expiration of the 5 day period referred to in clause 14.3, a mediator nominated by the Law Institute of Victoria will be appointed.
   5. If either party breaches any provision of clauses 14.2 to 14.4, the other parties need not comply with clause 14.1 in relation to that dispute.
   6. The existence of a dispute or the application of any part of the process in this clause will not of itself relieve either party from any obligation under these Terms and Conditions. The Customer must continue to make payments to the Supplier under these Terms and Conditions, except to the extent of any amount which is disputed.

1. 1. Any notice given under these Terms and Conditions must be in writing addressed to the relevant address last notified by the recipient. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

1. 1. Property and ownership (including legal and equitable title) in any Products sold by the Supplier to the Customer remains with the Supplier until the Customer pays in full for each Product.
   2. Risk in the Products will pass to the Customer upon delivery of the Products to the Customer.
   3. The Customer must insure (and keep insured) the Products as follows after risk in the Products passes to the Customer:
      1. the Products must be insured for their full insurable or replacement value (whichever is higher); and
      2. the Products must be insured by an insurer licensed or authorised to conduct the business of insurance in the place where the Products will be stored.
   4. If the Customer fails to pay for the Products in accordance with clause 4, then in addition to the Supplier's other rights under these Terms and Conditions and at law, the Customer must deliver the Products to the Supplier on demand, or the Customer agrees for the Supplier to recover possession of the Products by any necessary means and the Customer is liable for all costs associated with the exercise of the Supplier's rights under this clause, and this liability will be payable on demand.
   5. The Supplier and the Customer agree that until title passes to the Customer in accordance with these Terms and Conditions, the Customer must:
      1. only supply the Products in its ordinary course of business;
      2. not create or permit any security interest, lien, encumbrance or any third party interest of any kind in the Products;
      3. not remove, deface or obliterate any identifying mark or number on any of the Products;
      4. hold the Products as fiduciary bailee and agent for the Supplier; and
      5. permit the Supplier on not less than 24 hours’ written notice (or without notice in the case of an emergency) to enter the Customer’s premises during business hours to inspect the Products.
   6. The Supplier may bring an action for any amount owing to the Supplier in respect of Products even where ownership of the Products has not passed to the Customer.

1. 1. The Customer acknowledges that, in addition to the other rights of the Supplier under these Terms and Conditions and at law, these Terms and Conditions constitute a security agreement that creates a security interest in favour of the Supplier in all Products supplied by the Supplier to the Customer to secure payment from time to time, including future advances. The Customer agrees to grant to the Supplier a 'Purchase Money Security Interest'.
   2. The Customer acknowledges that by assenting to these Terms and Conditions, the Customer grants a security interest to the Supplier.
   3. The Customer undertakes to:
      1. sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) that the Supplier may reasonably require to enable registration of a financing statement or financing change statement (as defined in section 10 of the PPSA) on the Personal Property Securities Register ('PPSR');
      2. not register a financing change statement or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Products without the prior consent of the Supplier;
      3. pay all costs incurred by the Supplier in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions including executing subordination agreements; and
      4. be responsible for the full costs incurred by the Supplier (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.
   4. The Customer waives any right it may have under section 115 of PPSA upon enforcement.
   5. Unless otherwise agreed to in writing by the Supplier, the Customer waives any right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest under section 157 of the PPSA.
   6. The Customer agrees that immediately on request by the Supplier the Customer will procure from any person(s) considered by the Supplier to be relevant to its security position such agreement and waivers as the Supplier may at any time require.
   7. The Customer agrees to promptly do anything the Supplier requests (such as obtaining consents, providing information and signing and producing documents) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the PPSA and related regulations, to these Terms and Conditions and the security interest created by these Terms and Conditions.

1. 1. Notwithstanding any other provision of these Terms and Conditions to the contrary, neither party shall be liable to the other party and releases the other party in respect of any special, indirect or consequential loss or any loss of production, loss of revenue, loss of profit or anticipated profit, or business interruption.
   2. Notwithstanding any other provision of these Terms and Conditions and to the extent permitted by law:
      1. the Supplier, its servants, agents and sub-consultants will be deemed to have been discharged from all liability whatsoever in respect of the Products, whether under the law of contract, tort or otherwise, at the expiration of one year from the receipt of the Products; and
      2. the total liability of the Supplier in relation to these Terms and Conditions or to the Customer for any reason is limited to the amount payable by the Customer to the Supplier in respect of the Product giving rise to the liability.
   3. Nothing in this clause 18 limits or excludes either party’s liability for fraud, wilful misconduct, deliberate criminal acts or omissions, or any other liability which cannot be limited or excluded at law.
   4. The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss or damage to the Products in transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage). The Supplier must provide the Customer with such assistance as may be necessary to press claims on carriers so long as the Customer:
      1. has notified the Supplier and the carriers in writing immediately after loss or damage is discovered on receipt of the Products; and
      2. lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Products.
   5. The Customer's liability under these Terms and Conditions is not released, discharged or reduced by any waiver, indulgence or extension of time granted by the Supplier, any Insolvency Event affecting the Customer, the Supplier's delay in exercising any right, or the Supplier obtaining a judgment against the Customer or assigning its rights to a third party.

1. 1. The Customer at all times indemnifies and holds harmless the Supplier, its employees and agents and any Related Body Corporate of the Supplier from and against any Losses (including without limitation actions, proceedings, judgments, legal fees and charges) that may be incurred by, billed, made or recovered against the Supplier in connection with the performance or non-performance of the Customer's obligations under these Terms and Conditions and/or the supply of any Products by the Customer.
   2. The indemnity in clause Error! Reference source not found. does not apply to the extent that any claims, damages, expenses, losses or liabilities are caused by:
      1. any negligent act or omission of the Supplier or the Supplier's employees, agents or contractors, as the case may be; or
      2. a breach by the Supplier of these Terms and Conditions.

1. 1. No Relationship: The Supplier is an independent third party to the Customer and is not (nor is intended to be) an agent, partner or joint venturer of the Customer.
   2. Governing law: These Terms and Conditions are governed by and are to be construed in accordance with the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
   3. No waiver: A waiver by either party in respect of a breach of a provision of these Terms and Conditions by the other party is not a waiver in respect of any other breach. The failure of either party to enforce any provision of these Terms and Conditions will not be treated as a waiver of that provision, nor shall it affect that party's right to subsequently enforce that provision.
   4. Entire Agreement: These Terms and Conditions, including any terms expressly incorporated by reference in these Terms and Conditions, constitute the entire understanding and agreement between the parties as to the subject matter of these Terms and Conditions. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of these Terms and Conditions are merged in these Terms and Conditions and are of no further effect. No oral explanation or oral information given by any party shall alter the interpretation of these Terms and Conditions.
   5. Severance: If any of these Terms and Conditions are found to be void or unenforceable for unfairness or any other reason (for example, if a court or other body declares it so), the remaining Terms and Conditions will continue to apply, to the extent possible as if the void or unenforceable provision had never been agreed to or included in these Terms and Conditions.
   6. Amendment: These Terms and Conditions may be amended only by another agreement executed by all the parties.
   7. Counterparts: These Terms and Conditions may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same instrument.
   8. Costs: Subject to the express provisions of these Terms and Conditions, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under these Terms and Conditions.
   9. Further assurances: Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to these Terms and Conditions and the rights and obligations of the parties under it.

1. 1. In these Terms and Conditions, except to the extent otherwise indicated by the context:

Business Day – means a day that is not a public holiday, Saturday or Sunday in Victoria;

Claim – means any claim, demand, action, proceeding, notice, litigation, investigation or judgment whether based in contract, tort, statute or otherwise;

Confidential Information – means existing and future information in the possession of the party who owns it which is provided to the other party for the stated purpose, and includes information contained in any document which has been provided by one party to the other, and any information acquired by one party from the other in confidential circumstances relating to the Products. The Confidential Information may be oral or written, may be in the form of words, numbers and/or images and may, amongst other things, include statements, contracts, agreements, supplier and customer lists, specifications, drawings, reports, documents, knowledge, know-how, or other information in any form of media. The Confidential Information includes both existing data and knowledge and concepts, ideas and developments. The Confidential Information does not include information which is or becomes generally available to the public (other than through a breach of these Terms and Conditions), which can be proved to have been known by either party or its advisers prior to disclosure by the other party for the stated purpose, or which is required by law to be disclosed;

Customer – means the person or entity to whom Products are supplied or are to be supplied by the Supplier;

Delivery Date – means the estimated date on which the Products are delivered;

Delivery Point – means the point of delivery for the Product/s, specified in the Order by the Customer;

End Customer – means any person who purchases the Product from the Customer for its personal use;

Force Majeure Event – means anything outside the reasonable control of a person pursuant to which that person is unable in whole or in part to perform its obligations under these Terms and Conditions (other than the payment of money), including but not limited to: (a) acts of god or the public enemy, national emergencies, use of atomic weapons or nuclear fusion or fission, radioactive contamination, insurrection, riot, hostile or warlike action in peace or war, or stoppage; (b) strikes, lockouts, labour disputes, work stoppages, embargoes or any other labour difficulties; (c) any action or reaction of or made by, or any civil or military authority; and (d) pandemic or epidemics;

Insolvency Event – means, in respect of a party, any of the following: (a) the party is unable to pay its debts as and when they fall due, or is presumed to be insolvent under any applicable law; (b) an administrator, liquidator, provisional liquidator, receiver, receiver and manager, controller or trustee in bankruptcy is appointed in respect of the party or any of its assets; (c) the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, its creditors generally; (d) a resolution is passed or an application is made for the winding up or dissolution of the party (other than for the purpose of a solvent reconstruction or amalgamation); or (e) anything analogous to or having a substantially similar effect to any of the events specified above happens in any jurisdiction;

Intellectual Property Rights – means all present and future intellectual property rights, including improvements, whether registered or unregistered, including patents and patent applications, registered and registrable designs, copyrights, formulations, trade marks, circuit layouts, software, business or domain names, inventions, know-how, confidential information, trade secrets and similar industrial or intellectual property rights;

Loss and Losses – mean all losses, damages (including damage to persons or property), fines, Claims, liabilities (whether in contract or tort, pursuant to statute or otherwise) and all expenses and costs, legal or otherwise (including fees and disbursements reasonably incurred) of any kind and nature;

Order – means a written order given by the Customer to the Supplier for the Products;

Products – means the products specified by the Customer in an Order;

Related Body Corporate – has the meaning given in section 50 of the Corporations Act 2001 (Cth);

Supplier – means Active Outthere Pty Ltd ACN 137 261 922 of 14/94-102 Keys Road, Moorabbin;

Territory – means Australia and New Zealand; and

Unit Prices – means the Unit Prices for the Products as set out in an Order.