1.      TERMS OF TRADE

These terms apply to the supplies referred to in the quotation to which these terms are attached (the "Quotation"). They apply to the supply by the person set out as the seller on the Quotation (the "Seller") to the purchaser set out on the Quotation (the "Buyer"). The Buyer accepts these terms if it:

a.       advised the Seller that it accepts these terms; or

b.       places an order for the purchase of supplies from the Seller after it receives these terms. The supplies may be goods or services or both. For the purposes of clauses 12 [Warranties & Liability], 21 [Intellectual Property] and 22 [Buyer Warranty], references to "Seller" are references to the seller set out on the Quotation and (if different) CaesarStone Australia Pty Ltd ABN 45 121 819  976 and all related bodies corporate of CaesarStone Australia Pty Ltd, such that those clauses are separately for the benefit of, and may be separately enforced by, each of them.

2.      ORDERING PROCEDURES

a.       Supplies may only be ordered using the Seller's approved ordering procedures and forms, but the Seller may choose to accept a non-complying order.

b.      There is no contract for the supply of supplies until the Seller accepts an order by notifying the Buyer that it will supply the supplies or despatching the supplies.

c.        Once placed, an order cannot be cancelled, or delivery deferred, without the Seller's consent.

3.      PRICE

a.       Unless otherwise agreed in writing, the price payable for the supplies shall be the price set out on the Quotation or, if no price is set out, the Seller's current list price at the date of acceptance of the order plus transportation, packaging and any other expense incurred in delivering the supplies.  For the avoidance of doubt, the price payable does not include GST

b.       A statement of the Buyer's account by the Seller is prima facie evidence of its contents.

c.        Where the Quotation states that no monetary consideration is payable by the Buyer for the supplies, the Buyer's consideration is the Buyer's agreement not to unreasonably decline to enter a further contract with the Seller or its dealers for the further supply contemplated by the supplies.

4.      GST

In addition to the price payable under the preceding clause, the Buyer, upon provision of a tax invoice by the Seller, must pay to the Seller any GST payable by the Seller in respect of any taxable supply made by the Seller under these terms.

5.      PAYMENT OF TERMS – CREDIT FACILITY

a.       If the Buyer applies for a credit facility and the Seller approves it, then

                                                               i.      the Seller will invoice the Buyer for each order; and

                                                              ii.      the Buyer must pay each invoice in full within 30 days from the date of invoice.

b.       If the Buyer defaults in payment then, without prejudice to any other right or remedy of the Seller, the Buyer must pay to the Seller interest on any money overdue during the period of the default at the rate that is 2% per annum higher than the rate fixed as at the date of the default under Section 2 of the Penalty Interest Rates Act 1983 (Victoria) together with all of the Seller costs and expenses (including legal costs assessed on an indemnity basis) incurred in connection with the default.

c.        The Seller reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them.

d.       If the Buyer defaults in the payment of any money payable under this agreement, or any other agreement between the Seller and the Buyer, then in addition to charging interest under clause 5(b), the Seller may suspend performance of its obligations under this agreement until all amounts owing by the Buyer to the Seller (whether under this agreement or otherwise and whether or not actually payable at that time) are paid in full.

6.      PAYMENT TERMS – COD

If the Seller has not approved a credit facility for the Buyer then, at the Seller's election, the Buyer shall pay the invoice for the supplies prior to the Seller despatching the supplies.

7.      NO SET OFF

The Buyer shall pay any moneys owing to the Seller under these terms in full, and shall not set off such moneys against debts or liabilities owed or allegedly owed by the Seller to the Buyer, except debts acknowledged in a credit invoice properly issued by the Seller.

8.      DELIVERY  AND QUALITY OF SUPPLIES

a.       The Seller will deliver supplies to the Buyer CIP (Incoterms 2000) to the delivery location agreed by the Seller and set out on the Quotation.

b.       All supplies delivered by the Seller to the Buyer shall, to the extent permitted by law, be deemed to have been received by the Buyer in good order and condition and in accordance with the Specifications (as defined in clause 12(a)) as soon as the delivery docket has been signed by the Buyer, their carrier or agent.

c.        Under no circumstances shall the Seller be liable for any loss or damage suffered by the Buyer as a result of any late delivery or non- delivery of any supplies. Delivery times are estimates only.

9.      RETENTION OF TITLE

a.       Property and title in any goods provided by the Seller to the Buyer under this agreement (Supplies) passes to the Buyer when the Buyer pays the Seller in full for those Supplies and, until that time the Supplies:

                                                               i.      remain the property of the Seller; and

                                                              ii.      must be stored separately by the Buyer to enable them to be readily:

(a)             identified as the property of the Seller; and

(b)             cross referenced to particular invoices.

b.       Risk in the Supplies passes to the Buyer on delivery in accordance with this agreement.

c.        If the Buyer sells or otherwise disposes of any Supplies prior to the date on which title passes from the Seller to the Buyer under clause 9(a):

                                                               i.      that part of the proceeds of any sale or dealing as is equal to the amount payable by the Buyer to the Seller for those Supplies (Seller's Entitlement) must be held by the Buyer in a separate identifiable account on trust for the Seller; and

                                                              ii.      the Buyer must account to the Seller for the Seller's Entitlement.

d.       To the extent permitted by law, the parties agree that:

                                                               i.      this agreement creates a security interest in favour of the Seller for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA);

                                                              ii.      the Seller may register its security interest:

(a)             as a purchase money security interest (as that term is defined in accordance with the PPSA); and

(b)             on an "indefinite" basis on the Personal Property Securities Register (PPSR) in accordance with the PPSA;

                                                            iii.      the Buyer will supply information, execute such documents and take whatever action is reasonably required by the Seller to protect its security interest and ensure it has the priority required by the Seller.  This may include assisting the Seller to:

(a)             register, maintain and update its security interest on the PPSR;

(b)             give any notification in connection with the security interest; and

(c)              exercise its rights in connection with the security interest;

                                                            iv.      the Buyer and the Seller contract out of sections 95, 96, 117, 118, 121(4), 125, 130, 132,(3)(d), 132(4), 135, 142, 143 of the PPSA.  For the avoidance of doubt, the Buyer and the Seller contract out of the Buyer's rights to (and the Buyer waives its rights to):

(a)             not have goods damaged when the Seller (or any person on its behalf) removes an accession under Part 3.3 of the PPSA;

(b)             refuse permission to remove an accession under section 94 of the PPSA;

(c)              receive notice of the removal of an accession under section 95 of the PPSA;

(d)             apply to the court for an order concerning the removal of an accession under section 97 of the PPSA;

(e)              receive notice of the Seller's proposal to retain charged property under section 134(2) of the PPSA: and

(f)              object to the Seller's proposal to dispose of or retain any charged property under section 137 of the PPSA; and

                                                             v.      where the Seller has rights in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights will continue to apply and are not limited or excluded (or otherwise adversely affected) by any right provided by this clause or by law.

e.        For the avoidance of doubt, the Buyer has no right to use or otherwise deal with the Supplies if;

                                                               i.      the Buyer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration:

                                                              ii.      the Buyer breaches this agreement and fails to remedy the breach within 5 business days after receiving notice from the Seller requiring the breach to be remedied; or

                                                            iii.      this agreement is terminated for any reason.

f.        If the Buyer loses its right to use or otherwise deal with the Supplies under this clause 9, then the Buyer must return the Supplies to the Seller on written demand.  If the Buyer does not return the Supplies to the Seller within 24 hours after receipt of the demand, then without limiting any other rights or remedies the Seller may have:

                                                               i.      the Seller may, as agent of the Buyer, enter the premises where the Supplies are located and do all things necessary to retake possession of the Supplies, without liability for trespass or any resulting damage;

                                                              ii.      the Seller may keep or resell any of the Supplies repossessed.

                                                            iii.      the Buyer is liable for all costs associated with the exercise by the Seller of its rights under this clause 9, which costs are payable to the Seller on demand; and

                                                            iv.      the Buyer indemnifies and must keep indemnified the Seller against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Seller or which the Seller may pay, sustain or incur as a direct or indirect result of the exercise by the Seller of its rights under this clause 9.

10.  SUITABILITY OF SUPPLIES

a.       Any description of supplies given by the Seller is for the purposes of identification only, and the Buyer acknowledges that any sale of supplies under these terms is not a sale by description.

b.       The Buyer acknowledges that it relies entirely upon its own knowledge, skill and judgment and that of its agents and employees in selecting and ordering supplies from the Seller. The Seller will not provide any advice, express or implied, as to whether particular supplies are fit for any purpose, unless expressly agreed in writing signed by the Seller.

11.     CLAIMS

The Buyer shall advise the Seller in writing of any claims:

a.       in respect of deficiency or in respect of loss or damage that has occurred to supplies while they are in the custody of the Seller or the Seller's carrier - within 14 days of receipt of the supplies; and

b.       for non-delivery where the Seller's carrier was to deliver the supplies - within 14 days of the agreed delivery time (or if there was no agreed delivery time within 14 days of the reasonable delivery time).

c.        Subject to the Australian Consumer Law, if the Buyer does not advise the Seller as set out above, the Seller shall not be obliged to take any action in respect of that deficiency, loss or damage or non-delivery.

12.  WARRANTIES AND LIABILITY

a.       Subject to this clause 12 and to the maximum extent permitted by law, no party is liable to the other party or to any other person for:

                                                               i.      any loss or damage of any kind to the extent caused by or resulting from any act or omission of that other party or any of its employees, agents or contractors;

                                                              ii.      any personal injury, death or loss of or damage to real or personal property to the extent caused or contributed to by the other party or any of its personnel, contractors or agents; or

                                                            iii.      any loss of profits or anticipated profits, economic loss, loss of business opportunity, loss or damage resulting from wasted management time or any special, incidental indirect or other consequential loss or damage, even if notified of the possibility of that potential loss or damage.

b.       Any guarantee, representation, warranty, condition or undertaking that would be implied in this agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.

c.        Nothing in this agreement excludes, restricts or modifies any guarantee, condition, warranty, right or remedy conferred on the Buyer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement.

d.       To the maximum extent permitted by law, the liability of the Seller for a breach of a non-excludable guarantee, condition or warranty referred to in clause 12(c) is limited, at the Sellers' option to:

                                                               i.      in the case of goods, any one or more of the following:

(a)             the replacement of the goods or the supply of equivalent goods;

(b)             the repair of the goods;

(c)              the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(d)             the payment of the cost of having the goods repaired; or

                                                              ii.      in the case of Services:

(a)             the supplying of the services again; or

(b)             the payment of the cost of having the services supplied again.

13.  TERMINATION

a.       The Seller may terminate the agreement constituted by these terms ("Agreement") immediately by notice in writing if:

                                                               i.      the Buyer is in breach of any term of this Agreement and such breach is not remedied within 30 days of written notice by the Seller;

                                                              ii.      the Buyer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration;

                                                            iii.      the Buyer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

                                                            iv.      the Seller, being a natural person dies; or

                                                             v.      the Buyer ceases or threatens to cease conducting its business in the normal manner.

b.       If such notice is given to the Buyer, the Seller may in addition to terminating this Agreement (and without limiting clause 9(f)):

                                                               i.      repossess the supplies from the Buyer;

                                                              ii.      retain any monies paid by the Buyer, including any deposit;

                                                            iii.      be regarded as discharged from any further obligations under this Agreement; and

                                                            iv.      pursue any additional or alternative remedies provided by law.

c.        The Buyer may terminate this Agreement immediately by notice in writing if:

                                                               i.      the Seller is in breach of any material term of this Agreement and such breach is not remedied within 30 days of written notice by the Buyer; or

                                                              ii.      the Seller becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration.

14.  RETURNS

The Seller shall not be obliged to accept the return of any supplies, but may, in its absolute discretion, subject to mandatory legislative requirements, accept the return of particular supplies on whatever conditions it thinks fit.

15.  RESALES

The Seller may set out or refer to a recommended retail price for supplies.  In such a case, the price set out or referred to is a recommended price only and there is no obligation for anyone to comply with the recommendation.

16.  FORCE MAJEURE

If as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance or any other cause, of whatever nature, outside of the Seller's control the Seller is unable to perform its obligations under these terms the Seller is released from those obligations to the extent of such inability, and the Buyer shall not be entitled to claim compensation for any such failure by the Seller to perform its obligations.

17.  WAIVER

Failure by the Seller to enforce any of these terms in respect of any breach by the Buyer shall not be construed as a waiver of any of the Seller's rights or a waiver of the Seller's right to enforce the term in respect of that breach in the future. The only persons authorised to waive a breach by the Buyer are the Operations Manager, National Sales Manager and Distribution Manager of the Seller and the Buyer shall not seek to rely upon a waiver purportedly given on behalf of the Seller by any other person.

18.  GOVERNING LAW

These terms shall be governed by and construed in accordance with the laws in force in Victoria and the Buyer submits to the jurisdiction of the courts of Victoria.

19.  SEVERANCE

If any provision of this Agreement is contrary to law (for example by being illegal void or unenforceable) that provision shall be read down to the extent necessary to become valid and enforceable or, if this is not possible, shall be deemed to be severed from this Agreement, without affecting the remaining provisions of this Agreement.

20.  ASSIGNMENT  AND NOVATION

This Agreement shall not be assigned by the Buyer without the Seller's prior written consent. The Buyer shall consent to such assignment or novation of this Agreement as the Seller requests.

21.  INTELLECTUAL PROPERTY

The Buyer shall treat all information disclosed to it by or on behalf of the Seller, or acquired by the Buyer concerning the Seller or the supplies as the Seller's confidential information and shall not use or disclose the same except:

a.       to the extent necessary in order to make effective use of the supplies;

b.       to obtain professional advice concerning this Agreement;

c.        to the extent disclosure is required by law; or

d.       to the extent any relevant information shall become public knowledge other than through the Buyer's act or omission.

All intellectual property (including copyright) in all plans, drawings, designs and text (including Specifications) which are made available to the Buyer or customer shall be solely owned by CaesarStone Australia Pty Ltd ABN 45 121 819 976 and shall be delivered up to that company immediately on that company's request. The Buyer acknowledges that no intellectual property licence is granted by this Agreement, other than to the extent necessary to enable the Buyer to resell to the customer specified in the Quotation (referred to throughout this Agreement as the "customer") for the customer's own purpose and not for further resale.

22.  BUYER WARRANTY

The Buyer warrants that it has acted reasonably and in good faith to the Seller in disclosing to the Seller, prior to this Agreement, all information which may have materially affected the Seller's agreement to supply the supplies to the Buyer on these terms (including as to the Specifications). The Buyer also warrants that its purchase of the supplies is for the Buyer's own personal benefit only, and not for the benefit of any third party.

23.  DEALER-SPECIFIC TERMS

Where the Buyer is a dealer of CaesarStone Australia Pty Ltd ACN 121 819 976 or any of that company's related bodies corporate (collectively "CaesarStone"), the following additional terms apply:

a.       The Buyer shall not resupply the supplies to anyone other than the customer;

b.       The terms on which the Buyer shall resupply the supplies to the customer shall be materially the same as these terms (excluding this clause).

c.        Where the customer seeks the Buyer's consent relating to the supplies, the Buyer shall not provide such consent without the prior written approval of the Seller.

d.       The Buyer shall not engage anyone to assist in fulfilment of the Buyer's obligations to a customer without the Seller's prior written consent.

e.        If there is any claim or likely claim against the Buyer or the Seller in respect of the supplies, the Buyer will immediately inform the Seller, providing full details, and thereafter act in accordance with the Seller's directions in the management and settlement of the claim.

f.        The Buyer will not give the customer any warranties in respect of the supplies which are in addition to those provided to the Buyer by the Seller under these terms, without the Seller's prior written consent.

g.        The Buyer will at all times indemnify the Seller, and the Seller's officers, employees and agents ("those indemnified") from and against any loss (including legal costs and expenses) or liability suffered or incurred by any of those indemnified arising from any claim against those indemnified where the claim is referable to:

                                                               i.      a breach by the Buyer of its obligations under these terms or a breach of the Buyer's obligations to the customer;

                                                              ii.      any wilful, unlawful, or negligent act or omission of the Buyer; or

                                                            iii.      loss or damage of a type for which the Seller would not have been liable to the Buyer had the relevant claim been made by the Buyer under these terms.

h.       Where the Seller has any direct communications with a customer for matters connected with these terms, the Seller does so as agent for the Buyer, and will endeavour to keep the Buyer informed of all such communications.

24.  PRIVACY

The Seller collects personal information (as defined in the Privacy Act 1988) such as billing and delivery contact names and addresses information to assess the Buyer's credit application (if applicable) and for other credit reporting purposes set out in the credit application, to facilitate provision of the supplies requested by the Buyer and, unless the Seller is told otherwise, for marketing purposes. If the Buyer provides to the Seller personal information about any other person, it is the Buyer’s responsibility to bring to their attention the contents of this clause. The Seller may disclose the personal information to its agents, contractors and external advisers (for example, transport contractors and debt collection agencies) who are bound by confidentiality obligations. Failure to provide requested personal information may mean that the Seller is unable to provide the supplies requested. Requests for access to personal information held by the Seller and for a copy of the Seller’s Privacy Statement should be made to the National Operations Manager who may be contacted using the Seller's address or telephone number. The Buyer consents to any electronic address it has set out on the application form being used by the Seller to send the Buyer electronic messages for the purposes of administering the Buyer's account and, unless the Seller is told otherwise, for marketing purposes.