• Terms and Conditions

Terms & Conditions

Ludowici Group Ltd
STANDARD TERMS AND CONDITIONS OF SALE

1. SALE

Ludowici will sell and the Purchaser will buy the Goods for the Purchase Price on the terms and conditions set out herein.

2. QUOTATION

  1. The Quotation provided by Ludowici is incorporated into, and forms part of this Contract and is subject to the following:
    1. Unless otherwise agreed in writing by Ludowici, Ludowici may withdraw or vary the Quotation at any time prior to the Purchaser communicating in writing its acceptance of the quotation;
    2. Unless otherwise provided in writing by Ludowici, any Quotation provided by Ludowici to the Purchaser will automatically expire, and no longer be valid for acceptance, if Ludowici has not received the Purchaser's written acceptance of the quotation within 30 working days from Purchaser's receipt of Quotation.
  2. Where the Quotation is for Good to be imported by Ludowici (whether directly or through another entity) for the Purchaser:
    1. Unless otherwise provided in writing by Ludowici, the Purchase Price shall be calculated on the higher of:
      1. the Australian dollar rate of exchange applicable at the date of the Quotation; or
      2. the Australian dollar exchange rate at the time of delivery of the Goods; and
    2. Unless otherwise provided in writing by Ludowici, the Purchase Price includes carriage and insurance paid to the Australian port of discharge and is exclusive of all landing charges, wharfage, storage, customs clearance and entry, transport, insurance, and all customs duties, taxes and imposts of any kind which shall be to the account of the Purchaser.
  3. All prices for Goods supplied by Ludowici are exclusive of any applicable taxes and levies, which shall be to the account of the Purchaser.

3. PURCHASE PRICE

  1. On or before the Payment Date, the Purchaser must pay Ludowici the Purchase Price for the Goods by:
    1. at the Purchaser’s option (for non-overseas Purchasers):
      1. Cash;
      2. Direct deposit into Ludowici’s nominated bank account; or
      3. Bank cheque; or
    2. In the case of an overseas Purchasers, by way of an unconditional and irrevocable letter of credit on terms acceptable to Ludowici in its absolute discretion.
  2. In addition to the Purchase Price payable by the Purchaser, the Purchaser shall pay any other costs Ludowici has incurred on behalf of and notified to the Purchaser or which Ludowici is entitled to claim against the Purchaser for the supply of Goods under the terms and conditions stated herein.
  3. Where Ludowici and the Purchaser have agreed in writing for Ludowici to deliver the Goods in instalments, delivery of further instalments is conditional upon the Purchase Price for each instalment of Goods being paid on the payment Date.
  4. Where the Purchaser fails to pay the Purchase Price or any other payment due under this Contract by the Payment Date or any other date approved in writing by Ludowici then interest shall accarue on the unpaid amount at the Interest Rate, calculated on a daily basis, from the date of payment due until the Purchase Price is fully paid.

4. PROPERTY IN GOODS

  1. Ludowici shall retain full title in the Goods until the Purchaser has paid Ludowici the Purchase Price and all other amounts owing under this Contract in full.
  2. Where the Goods have been delivered to the Purchaser and the Purchase Price has not been fully paid, then the Purchaser must:
    1. Hold the Goods as agent for Ludowici;
    2. Receive any monies received from any on-sale of the Goods to a third party on trust for Ludowici;
    3. Keep the Goods and any monies received from any on-sale of the Goods to a third party separate and clearly identifiable;
    4. Promptly pay to Ludowici any monies received from any on-sale of any Goods, and such payment shall be a deduction from the Purchase Price; and
    5. Where the Contract is terminated without payment being made in full of the Purchase Price and any other money due under this Contract, return all Goods to Ludowici or allow Ludowici reasonable access to the Purchaser’s premise to enable the Goods to be recovered by Ludowici, at the Purchaser’s cost and expense.
  3. Where any Goods have been on-sold by the Purchaser to a third party before the Purchase Price is fully paid, then the Purchaser must, if required by Ludowici, assign all rights to any claims it may have against such third parties to recover any unpaid amounts in respect of the Goods onsold.
  4. Where for whatever reason the Goods become mixed with other goods then title to such Goods shall be assigned to Ludowici until full payment of the Purchase Price is received and the rights of Ludowici under this Contract shall apply to such other goods.
  5. Notwithstanding any other provision in this Contract (but without limitation to any other rights of Ludowici, under this Contract or otherwise), where the Purchaser has failed to pay the Purchase Price by the Payment Date or any other date approved in writing by Ludowici then Ludowici shall be entitled to re-take possession of the Goods if they have not been on-sold. The Purchaser shall cooperate fully with Ludowici for the purpose of re-taking possession of such Goods.

5. RISK AND DELIVERY

  1. The risk in the Goods passes to the Purchaser when the Goods are delivered to the Purchaser in accordance with clause 5(b), notwithstanding the retention of title by Ludowici in clause 4.
  2. Delivery of the Goods will be deemed to take place upon the dispatch of the Goods from a Ludowici premise, warehouse or factory wherever situated whether or not the Goods are supplied within Australia.
  3. Unless otherwise stated, delivery will be at the cost of the Purchaser, including without limitation, packaging, transportation, insurance, custom duties, port costs or charges, storage, taxes, surcharges and levies.
  4. Unless the Purchaser has given specific written instruction as to the delivery of the Goods to Ludowici and Ludowici has confirmed receipt of such instructions in writing (including any insurance required by the Purchaser to be obtained in its name at its cost), delivery will be effected by any means or mode of transport determined by Ludowici in its absolute discretion.
  5. Ludowici reserves the right to deliver the Goods by instalments and any delay in delivering  an instalment of Goods by a date specified by Ludowici for delivery shall not entitle the Purchaser to terminate or rescind this Contract.
  6. Any timeframes given for delivery of any Goods (including in any Quotation) are estimates only and the Purchaser shall not be relieved of any obligation to accept the Goods and pay the Purchase Price for any Goods by reasons of any delay in delivery.

6. RETURNS

  1. Goods delivered under this Contract may not be returned by the Purchaser, for exchange, credit or any other amount, without Ludowici’s express consent in writing.
  2. The Purchaser must make a written application to Ludowici for return of any Goods and such application must be received by Ludowici within fourteen days from date of delivery.
  3. Where approval is granted for return of any Goods by the Purchaser, Ludowici may charge a re-stocking fee of 15% of the invoiced value of the Goods which have been returned.

7. CANCELLATION

  1. Any order placed and accepted by Ludowici under this Contract must not be cancelled by the Purchaser except:
    1. by Agreement in writing between both Parties;
    2. by payment by the Purchaser of any cancellation charges imposed by Ludowici and reasonable compensation for any work done and for any costs and expense incurred or committed for the supply of Goods; or
    3. upon any other reasonable terms as determined by Ludowici for the cancellation by the Purchaser.

8. PPSA

  1. In this clause 8, PPSA means the Personal Property Securities Act 2009 (Cth). If a term used in this clause 8 has a particular meaning in the PPSA, it has the same meaning in this clause.
  2. This clause 8 applies to the extent that Ludowici’s interest in any Goods supplied under this Contract is a security interest. The security interest that attaches to any such Goods will also attach to the proceeds of those Goods.
  3. The Purchaser acknowledges and agrees that Ludowici may apply to register a security interest in any Goods supplied under this Contract at any time before or after delivery of those Goods. The Purchaser waives its right under s 157 of the PPSA to receive notice of any verification of the registration.
  4. If Ludowici at any time receives from the Purchaser amounts which are less than the amounts due and payable to Ludowici at that time under this Contract, Ludowici can apply the amounts it receives from the Purchaser towards amounts due and owing to it in such order as Ludowici chooses.
  5. Ludowici may enforce its security interest in any Goods by exercising all or any of its rights under this Contract or the PPSA. To the maximum extent permitted by law, Ludowici and the Purchaser agree that the following provisions of the PPSA do not apply to the enforcement by Ludowici of its security interest in any Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
  6. Ludowici and the Purchaser agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7)(b) to (e) of the PPSA.
  7. The Purchaser must promptly do anything reasonably required by Ludowici to ensure that Ludowici’s security interest is a perfected security interest and has priority over all other security interests in the Goods.

9. INTELLECTUAL PROPERTY

All Intellectual Property in the Goods and any materials provided to the Purchaser by or on behalf of Ludowici in connection with this Contract shall remain vested in Ludowici or its licensors, and nothing in this Contract shall be taken to be a deemed assignment or licence of the Intellectual Property to the Purchaser. The Purchaser warrants to Ludowici and agrees that it will not modify, reverse engineer, tamper, attempt to repair, improve or upgrade the Goods, or otherwise deal with the Goods, except as expressly permitted by Ludowici under this Contract or to the extent permitted under applicable law.

10. CONFIDENTIALITY

  1. The Purchaser must:
    1. Keep this Contract, the Intellectual Property and all information provided by Ludowici to Purchaser under this Contract, strictly confidential (“Confidential Information”);
    2. Not disclose Confidential Information unless:
      1. Required by law; or
      2. It is already generally available in the public domain;
      3. To its employees, agents and consultants on a need-to- know basis only and must ensure that such persons also observe the confidentiality attaching to the Confidential Information.
    3. If reasonably required by Ludowici, enter into any document required to protect Ludowici’s right, title and interest in the Intellectual Property or to maintain the confidentiality of the Confidential Information;
    4. Sign any document required by Ludowici to assign to Ludowici any right, title or interest in any improvements to the Intellectual Property which have been made by the Purchaser or its employees, agents or consultants including procuring where the context requires its employees, agents and consultants to sign such document;
    5. Return the Confidential Information or and any copies thereof to Ludowici, or to deal with the Confidential Information strictly in accordance with Ludowici’s instructions;
    6. Comply immediately and strictly with Ludowici’s direction in regards to dealing with Confidential Information, including, upon written request, the return of any Confidential Information to Ludowici, or to destroy or delete from the Purchaser’s records and systems of any Confidential Information or copies thereof.

11. DESIGNS AND MATERIALS

  1. Any Goods to be acquired by the Purchaser from Ludowici under this Contract shall be manufactured:
    1. In accordance with Ludowici’s design and specifications for any Goods ordered by the Purchaser current at the date of the Quotation; and
    2. Using standard materials which are available or from the most suitable alternative where the standard materials are not available.
  2. Where Ludowici manufactures any Goods ordered by the Purchaser in accordance with the design, manufacture methodology, specification, materials or otherwise as required by the Purchaser (“Purchaser’s Specifications”), such Purchaser’s Specifications shall be at the Purchaser’s cost and Ludowici will not be responsible or liable (including to any third party) for any performance, accuracy, suitability or reliability (or lack thereof) of such Purchaser’s Specifications or any Goods manufactured in compliance with the Purchaser’s Specifications.
  3. The Purchaser must:
    1. Not make any representations, assume any obligations or give any warranties or guarantees (or similar) to any third parties (including third party purchasers of the Goods) which are inconsistent with or more onerous than those provided to the Purchaser by Ludowici under this agreement, including any warranties which bind Ludowici in relation to the fitness for purpose of any Goods manufactured by Ludowici in accordance with the Purchaser’s Specifications; and
    2. Indemnify and keep indemnified Ludowici against any and all Loss incurred by Ludowici as a result of or in connection with any such representations, warranties,guarantees or obligations made or given by the Purchaser.

12. TOOLING

  1. Where Ludowici and the Purchaser have entered into this Contract for Ludowici to manufacture Goods which are not standard items of its production, or are in accordance with the Purchaser’s Specifications, requiring the establishment by Ludowici of Tools then the Purchaser will be responsible for the total cost of the Tools or a portion thereof as is reasonably attributable to the extent of the Purchaser’s Specifications (“Purchaser’s Tooling Cost”). Agreeing to the amount of Purchaser’s Tooling Cost shall be a precondition to the Quotation and is in addition to the Purchase price set out in the Quotation provided (unless otherwise expressly indicated in the Quotation).
  2. Unless otherwise agreed in writing, all Tools manufactured or supplied by Ludowici:
    1. Shall be the property of Ludowici; and
    2. Ludowici may sell any of the Tools to the Purchaser at prices set out in the Quotation.
  3. Where, in the opinion of Ludowici, the condition of the Tools renders the Tools unusable due to fair wear and tear, or additional Tools are required to account for increased demand, then part of the cost of new Tools will be to the Purchaser’s account for an amount signed by the parties.
  4.  If the Purchaser supplies any Tools:
    1. Ludowici will take reasonable care to ensure that they remain in good working condition subject to fair wear and tear in the circumstances but no responsibility is accepted by Ludowici for any loss or damage to any Tools supplied by the Purchaser;
    2. Maintenance and repair of the Tools supplied by the Purchaser required under normal usage will be to the Purchaser’s account, as will be the cost of any modification necessary to adapt to Ludowici’s plant or production processes.
  5. All Tools will be considered obsolete if no further orders have been placed by the Purchaser for production within 3 years of the date of last supply by Ludowici to the Purchaser, and Ludowici will not accept any responsibility for their continued existence, usability or disposal after such period.

13. INSPECTION, SHORTAGES AND DAMAGED GOODS

  1. Where the Purchaser requires special tests on Goods whether attended by the Purchaser, its representative or not, such tests, unless otherwise agreed, shall be made at Ludowici’s premises, or any other location which Ludowici considers appropriate, at the cost of the Purchaser.
  2. In the event of any delay on the part of the Purchaser or its representative in attending such special tests, after seven days notice of the Goods being available for testing, the tests will be held in the Purchaser’s absence, and the Purchaser will be deemed to have accepted the Goods and to have waived any claims in relation to the Goods.

14. QUANTITY TOLERANCES

Where Ludowici has contracted to manufacture Goods which are other than its standard items, Ludowici reserves the right to vary the quantity delivered by a margin up to 10 percent (10%) in excess of the quantity ordered by the purchaser and to charge for this variation in quantity on a prorata basis.

15. PERFORMANCE AND TIMEFRAMES

  1. The Purchaser warrants that it has not relied on any representations or warranties by Ludowici other than those in this Contract.
  2. The Purchaser acknowledges and agrees that all figures or data supplied by Ludowici for performance of the Goods are intended to be a bona fide and reasonable estimate of the performance of the Goods expected under appropriate conditions and within certain defined parameters and tolerance limits at time of testing only.
  3. Unless Ludowici has specifically committed in writing to performance figures, within certain defined parameters, conditions and specific tolerance limits
  4. Ludowici is not liable for failure of any Goods to meet stated performance figures or data.
  5. Any statement as to performance figures, whether in writing or otherwise, will not constitute a condition, warranty or representation.
  6. The Purchaser acknowledges and agrees that any timeframes specified by Ludowici in relation to the Goods are estimates only and Ludowici is not liable for any failure to meet such timeframes.

16. GOODS WITH DEFECTS

  1. If any Goods which, within a period of 6 months from delivery and upon examination by an authorised Ludowici representative, are found to be defective in workmanship, material or design whereby they are unsuitable, under proper usage and service for the purpose for which they are intended and under proper maintenance in accordance with Ludowici’s specifications and/or materials, Ludowici will do one or more of the following (the choice of action being in Ludowici’s sole discretion):
    1. Replace such Goods free of charge;
    2. Repair or rectify such Goods either in-situ or at a site nominated by Ludowici; or
    3. If agreed in writing by and under direction of Ludowici, arrange for the replacement, repair or rectification of such Goods by a third party nominated by Ludowici,whereupon Ludowici may also pay for any transport costs relating to the replacement Goods or repairs but excluding cost of demobilisation and removal.
  2. Ludowici’s obligations under paragraph (a) will not apply where:
    1. Goods are not put to proper usage, application or service, or Goods are put to use in conditions outside of the defined or specified parameters, conditions and tolerance limits for manufacture;
    2. A defect results from the Purchaser’s Specifications (if supplied);
    3. A defect results or arises from careless or improper handling by the Purchaser or user, incorrect fitting, non-observance of operating, maintenance or installation instructions, by repair or attempted repair by the Purchaser or a third party without the consent of Ludowici in writing;
    4. the relevant Defect is due to fair wear and tear;
    5. the relevant Goods are, or were specified in the Quotation as, second-hand; or
    6. the Goods, components thereof or accessories, are not manufactured by Ludowici.

17. LIMITATION ON LIABILITY

  1. To the maximum extent permitted by law, Ludowici will not be liable to the Purchaser for, and no measure of damages will, under any circumstances, include any of the following:
    1. Any Loss of an indirect, special, punitive, incidental or consequential nature;
    2. Loss of profits, loss of contract, loss of opportunity, loss of goodwill, loss of business reputation, loss of revenue, loss of use of property or loss of production;
    3. Increased costs of working or labour costs;
    4. Costs of capital; or
    5. Costs of business interruption, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
  2. Ludowici’s liability in respect of any implied warranties, guarantees or representations will be limited to the remedies set out in clause 21(b).
  3. To the maximum extent permitted by law, notwithstanding any provision to the contrary, Ludowici’s total aggregate liability for all Loss under or relating to this Contract or its subject matter, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, shall not, under any circumstances, exceed the amount of the Purchase Price received by Ludowici.
  4. To the maximum extent permitted by law, Ludowici will not be liable for any Loss, including any for personal injury, death or sickness, arising out of or in connection with use of the Goods, if:
    1. the Purchaser has not informed Ludowici in writing that the Goods will or may be used in situations that will or may pose an occupational health and safety risk or hazard;
    2. Ludowici has not, in its sole discretion, conssuch use is not a reasonably foreseeable use of those Goods.

18. INDEMNITIES BY PURCHASER

The Purchaser indemnifies and shall keep indemnified Ludowici against Loss suffered by Ludowici as a result of or in connection with:

  1. Goods for which the Purchase Price has not been paid by the Payment Date or a date otherwise approved in writing by Ludowici;
  2. An infringement of any Intellectual Property in any design, sample, material, specification or instruction given to Ludowici by the Purchaser (including in connection with any Purchaser’s Specifications).

19. TERMINATION

  1. This Contract starts on the date the last party signs this Contract and will continue until it is terminated or
  2. Ludowici may terminate the Contract immediately at its option if the Purchaser:
    1. Becomes bankrupt or insolvent;
    2. Makes or resolves to enter into any settlement, moratorium, arrangement with its creditors;
    3. Suffers a receiver, administrator, liquidator or provisional liquidator to be appointed;
    4. Being a body corporate, enters into liquidation;
    5. is unable to pay its debts when they are due; or
    6. commits a material breach of this Contract and, where the breach is capable of remedy, does not remedy the breach within 30 days of receiving a notice to do so, and the price for all Goods delivered and in the course of manufacture and any other amounts outstanding as at the date of, or arising as a result of, termination (including any cancellation charges), shall immediately become due and payable.
  3. The Purchaser must give Ludowici written notice as soon as the Purchaser anticipates that an event in paragraph (b) will occur or has occurred.
  4. Termination of this Contract under this clause does not affect any rights accruing or which have accrued to Ludowici.
  5. Clauses 9, 17, 18, 19, 20, 21, 24 and 25 survive termination or expiry of this Contract together with any other term which by its nature is intended to do so.

20. DISPUTE RESOLUTION

  1. If any dispute arises in relation to this Contract (“Dispute”), then either party may give the other party a written notice setting out the nature of the dispute (“Notice of Dispute”).
  2. Each party’s senior representative(s) must meet within 21 days after the date of receipt of the Notice of the Dispute to seek to resolve the dispute in good faith.
  3. Where the Dispute is not resolved under clause 20(b) within 21 days of it being referred for resolution, the dispute must be dealt with under the provisions of paragraph 20(d) herein.
  4.  Except as provided in paragraph 20(c) herein, all Disputes shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, with however the place of arbitration being in Brisbane, Queensland, Australia.
  5. This clause shall not preclude a party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
  6. The parties shall share the costs of dispute resolution under this clause equally unless the arbitrator or expert gives a certificate that the conduct of a party is such that it should bear all or a major portion of the costs.
  7. Nothing in this clause shall prevent a party from applying to a court of competent jurisdiction for an injunction or other equitable relief.

21. IMPLIED TERMS

  1. All express or implied conditions, warranties, guarantees, representations or other terms relating to this Contract or its subject matter, not contained in this Contract (including warranties, guarantees or representations as to performance or fitness for purpose of the Goods), are excluded from this Contract to the maximum extent permitted by law.
  2. Where any guarantee, warranty, term or condition is implied or imposed in relation to this Contract under any applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and Ludowici is able to limit the Purchaser’s remedy for a breach of the Non-Excludable Provision, then the liability of Ludowici for breach of the Non-Excludable Provision shall be limited, at the option of Ludowici, to one or more of the following:
    1. If the breach relates to goods:
      1. The replacement of the goods or the supply of equivalent goods;
      2. The repair of the goods;
      3. The payment of the goods or of acquiring equivalent goods; or
      4. The payment of the cost of having the goods repaired.
    2. If the breach relates to services:
      1. The supplying of the services again; or
      2. The payment of the cost of having the services supplied again.

22. FORCE MAJEURE AND DELAY

  1. If the occurrence of a Force Majeure Event prevents or is likely to prevent the supply of the Goods in accordance with the Contract, Ludowici may give the Purchaser written notice of the Force Majeure Event.
  2. Ludowici must use its reasonable endeavours to remove the effect of each Force Majeure Event affecting its performance of the Contract and the Purchaser must provide all assistance reasonably requested by Ludowici to remove that effect.
  3. If Ludowici is unable to perform or is delayed in performing an obligation under this Contract because of Force Majeure Event, the obligations of Ludowici under this Contract will be suspended, to the extent they are affected by the Force Majeure Event until the cessation of the Force Majeure vent.
  4. Ludowici must give notice to the Purchaser of the cessation of a Force Majeure Event as soon as reasonably possible and must as soon as reasonably possible after cessation of that Force Majeure Event, resume performance of any obligation suspended as a result of it.
  5. If the ability of the Contractor to perform its obligations under this Contract is materially adversely affected by a Force Majeure Event for a period that continues beyond the date which is 60 days from the date of occurrence of the relevant Force Majeure Event, either party may:
    1. Request that the Goods be supplied by a mutually agreed alternative manner; or
    2. Cancel the Contract.
  6. Each party must bear its own costs and no party will have any claim for compensation against the other arising from the cancellation of the Contract pursuant to this clause.
  7. Ludowici will have no liability to the Purchaser arising out of or otherwise in relation to this Contract to the extent caused by a failure of the Purchaser to perform any of its obligations under this agreement or the negligence or wilful misconduct of the Purchaser or any of its employees, officers, agents or subcontractors.

23. GST

  1. For the purposes of this clause 23:
    1. “GST”, “Supply”, “Tax Invoice” and “Taxable Supply” have the meanings given in the GST Act.
    2. “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 as amended.
  2.  If any Supply made by either party (“Supplier”) to the other (“Recipient”) under this Contract is a Taxable Supply, then in relation to any consideration payable by Recipient to Supplier under this Contract, Supplier shall be entitled to recover from Recipient an additional amount on account of GST, such amount to be equal to the amount of Supplier’s GST liability. In respect of the supply calculated in accordance with the GST Act and on the basis that the consideration otherwise payable under this Contract is the Value of the Taxable Supply and shall be recoverable at the time when the Purchase Price is paid. Supplier must issue a Tax Invoice to Recipient for the amount of GST referable to each Taxable Supply.
  3. If any Supply under this Contract is a Taxable Supply then both parties acknowledge that they are registered for GST purposes.

24. GENERAL

  1. This Contract may not be amended, deleted or added to without the consent in writing of Ludowici.
  2. The Purchaser must not assign its interest in this Contract without the consent of Ludowici in writing.
  3. This Contract shall be governed by and construed in accordance with the laws of Queensland, Australia and the parties submit to the jurisdiction of the courts of Queensland, Australia. The Vienna Convention is excluded for the purpose of this Contract.
  4. The Purchaser shall pay to Ludowici any amount which Ludowici is required to pay on account of any excise or sales taxes, customs duty, goods and services tax, or any other taxes, duties or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, or sales of the same. Unless such taxes or other impositions have been specifically included in the price quoted, they shall be payable by the Purchaser as an extra charge.
  5. Nothing in this Contract will constitute a partnership between the parties nor constitute one party the agent or representative of the other party.
  6. Any notice or other communication to be given by a party to another party under this Contract must:
    1. Be in writing;
    2. Give the address of recipient as set out in this Contract or as revised by notice from the relevant party;
    3. Be left at or sent by prepaid/registered post to that address or sent by facsimile; and
    4. Be deemed to be served:
      1. On the day of delivery; or
      2. 3 days (if sent within Australia) or 7 days (if sent outside Australia) after the date of posting by prepaid; or
      3. On the date recorded on the transmission report if sent by facsimile or the next business day if outside business hours.
  7. All payments made under this Contract must be made in Australian dollars in accordance with clause 3(a).
  8. Ludowici reserves its absolute right to set off against any amounts payable under this Contract any other monies payable by Ludowici to the Purchaser, and shall give the Purchaser reasonable notice of such set-off as and when it chooses to exercise this right.
  9. This Contract contains the entire agreement of the parties with respect to the subject matter to which this Contract relates. All prior terms, agreements or representations, expressed or implied, are superseded by the Contract.
  10. Where any inconsistency exists between the Quotation and these Standard Terms and Conditions of Sale (other than terms clearly provided for within the Quotation), these Standard Terms and Conditions of Sale shall prevail to the extent of the inconsistency.
  11. If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Contract and this Contract otherwise remains in full force and effect.

25. DEFINITIONS

“Contract” means the agreement made upon the Purchaser’s acceptance of the Quotation and these Standard Terms and Conditions of Sale.

“Force Majeure Event” means a labour dispute, lockout, act of government, war, riot, civil disturbance, embargo, storm, tempest, fire, flood, earthquake, natural calamity or other event beyond the reasonable control of Ludowici.

“Goods” means the goods which the Purchaser has ordered from Ludowici and for which Ludowici has given the Purchaser the Quotation and, where specified in the Quotation, any services which Ludowici has agreed to supply to the Purchaser.

“Intellectual Property” means intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks, designs and circuit layouts, manufacturing methods, know-how, processes, technology (whether patentable or not), illustrations, drawings and specifications and any improvements thereto, whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extension.

“Interest Rate” means the rate which is 3.5% per annum above the Westpac Banking Corporation Indicator Lending Rate published in the Australian Financial Review.

“Loss “means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.

“Ludowici” means the entity suppling Goods under the Quotation to the Purchaser.

“Purchaser” means the person set out in the Quotation.

“Purchase Price” means the amount set out in the Quotation.

“Payment Date” means the earlier of:

  1. Where Ludowici supplies the Goods within Australia, 30 days from the date on which Ludowici provides the Purchaser with an invoice for the Goods;
  2. Where Ludowici supplies the Goods outside of Australia;
    1. 3 working days after the Quotation is accepted by Purchaser (for any upfront payment specified in the Quotation); and The date Ludowici provides the overseas Purchaser with the appropriate negotiable shipping document as agreed on the Quotation (for payment of the balance specified in the Quotation); or Unless a later date is otherwise approved in writing by Ludowici.

“Quotation” means the quotation which Ludowici has provided the Purchaser for the supply of Goods and services and which accompany these Standard Terms and Conditions of Sale, subject to clause 2.

“Standard Terms and Conditions of Sale” means the terms and conditions set out herein, as amended by Ludowici from time to time.

“Tools” means any tooling necessary for Ludowici to carry out the work in relation to this Contract and includes, dies, tools, moulds, cutters and jigs.

26. INTERPRETATION

In this Contract:

  1. a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  2. a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;
  3. the singular includes the plural, and vice versa; and
  4. “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.