Terms & Conditions

AXIS PACKAGING PTY LTD
T/A AXIS INDUSTRIAL
TERMS & CONDITIONS OF SALE

1. Basis of the Agreement
   1. These Conditions apply to two types of activity by the Company: (a) the performance of packaging Services in respect of Goods belonging to the Customer, including the supply of Packaging Materials; and (b) the supply of Products by the Company to the Customer, which are either Bedding Products or Non-Bedding products or both.
   2. The Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or the course of dealing.
   3. The Customer acknowledges that it has read and understands these Conditions and all other parts of this Agreement and the Customer agrees to be bound by these Conditions.
   4. This Agreement constitutes the entire agreement between the Customer and the Company regarding the subject matter it deals with, and the Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in this Agreement. Any drawings, descriptive matter, advertising material, catalogues, brochures, website content or other marketing or promotional materials issued or published by the Company (Marketing Materials) are provided for general information only and for the sole purpose of giving an approximate idea of the Services and Products described in them. While the Company takes reasonable care to ensure that Marketing Materials are current and accurate, the Company makes no representation or warranty (express or implied) as to their accuracy, completeness, reliability or suitability, and the Customer must not rely on them as being error-free or fit for any particular purpose. All Marketing Materials are provided “as is” to the fullest extent permitted by law and do not form part of this Agreement (or any other agreement) between the Customer and the Company. To the fullest extent permitted by law, the Company will not be liable for any loss, damage or claim arising from or in connection with the Customer’s reliance on any Marketing Materials. The Customer acknowledges that not every Product or Service described in the Marketing Materials will be suitable for the Customer’s intended use, and the Customer remains solely responsible for determining suitability and fitness for purpose unless otherwise expressly agreed in writing by the Company.
   5. This Agreement replaces all earlier or pre-existing agreements between the Customer and the Company.
   6. All Services and Products provided by the Company to the Customer are subject to these Conditions.
   7. In the event of any, or to the extent of any inconsistency, between these Conditions and any terms or conditions incorporated into a bill of lading, waybill, consignment note, or other transport document issued by the Company or by any third party in course of providing the Services and Products, these Conditions will prevail.
2. Definitions
   1. The following words will have special meaning in this Agreement, as follows.
      1. ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)).
      2. Agreement means these Conditions together with the Quote, Order Confirmation or Tax Invoice and any other document incorporated into the Quote, Order Confirmation or Tax Invoice or these Conditions.
      3. Bedding Product means a product that is a wooden, constructed bedframe.
      4. Business Day means a day other than a Saturday, Sunday, or public holiday in Western Australia.
      5. Company means AXIS Packaging Pty Ltd (ACN 164 207 023) trading as AXIS Industrial Solutions.
      6. Conditions means these terms and conditions as amended from time to time by the Company, in the version current at the time the Agreement is made. Note: the specific version is indicated in the footer of this document.
      7. Customer means the person or entity identified as such in the Quote, Order Confirmation, or Tax Invoice, including its legal successors or personal representatives.
      8. Goods means all property of the Customer delivered to or handled by the Company in connection with the Services, including any items supplied by the Customer for packaging or processing.
      9. GST means the goods and services tax imposed by the GST law.
      10. GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      11. Non-Bedding Product means a product other than a Bedding Product and includes Packaging Materials.
      12. Quote means a written quote or estimate from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products, for acceptance by the Customer and submission of a Purchase Order made on that basis.
      13. Order Confirmation means a written Confirmation of a Customer’s Purchase Order from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products.
      14. Tax Invoice means a written Tax Invoice from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products completed, in compliance with GST law.
      15. Packaging Materials means any materials, components or systems supplied by the Company as part of the Services or as Products, including without limitation crates, wraps, films, VpCI products, and protective materials. For the avoidance of doubt, Packaging Materials are deemed to be Products where supplied to the Customer, whether separately or in connection with the Services.
      16. Party means either the Company or the Customer, and parties means both, except in the phrases “third party” or “third parties”.
      17. Products means products that the Company sells or resells to the Customer, being Bedding Products and/or Non-Bedding Products.
      18. Purchase Order means the Customer’s request to the Company for Services and/or Products made in such form reasonably requested by the Company.
      19. Sample means a sample Product item for which the Customer has not paid any price, and which is provided by the Company to the Customer as an obligation-free gift.
      20. Services means the packaging, handling, preparation, preservation, treatment, storage, or other agreed services performed by the Company in relation to the Goods, including the use or supply of Packaging Materials.
   2. Interpretation
      1. A reference to a “person” includes a natural person, a corporate or unincorporated body (whether or not having separate legal personality), a trust, and any other non-natural legal person recognised by law as having contracting capacity.
      2. A reference to a “party” includes its personal representatives, successors or permitted assigns.
      3. A reference to a statute or statutory provision:
         1. is a reference to such statute or provision as amended or re-enacted from time to time; and
         2. includes any subordinate legislation made under that statute or statutory provision as amended or re-enacted.
      4. Any singular reference includes the plural and vice versa and the word ‘including’ means ‘including, but not limited to’, and the word ‘includes’ means ‘includes’ without any limitation.
      5. The terms set out in any appendixes to these Conditions form part of these Terms & Conditions.
3. The Company
   1. The parties acknowledge that the Company is not a manufacturer and instead is a service provider and installer of Goods and/or supplier of customised timber, plastic, metal and heavy equipment packaging and protection solutions. The Company acts as a reseller and/or distributor of certain third-party products and is not the manufacturer of those products.
   2. The Company is not a common carrier, but may load, unload, perform or provide transport services for the Customer by agreement without accepting any liability as a common carrier.
   3. The Company may, at its discretion, engage subcontractors in the performance of Services or supply of Products, without the Customer’s consent, provided that the Company remains responsible for the performance of its obligations under this Agreement.
4. Quotes and Pricing
   1. The cost of the Services or Products is calculated by the Company and set out in the Quote according to the Customer’s instructions or information. A Quote specifying the price for Services or Products is provided by the Company to the Customer.
   2. The Quote price and/or fees will be exclusive of GST if GST applies, but any applicable GST or GST exemption will be shown on the Quote. The amount of GST to be applied to the Purchase Order will be confirmed in the Order Confirmation and Tax Invoice supplied to the Customer after acceptance of the Purchase Order by the Company.
   3. All quotations for fees or prices shown in a Quote are valid for the period stated on the Quote. No oral or email indication of fees or prices will be binding on the Company unless and until it is confirmed by the Company formally via a written Quote.
   4. The Company reserves the right to: (a) accept or refuse to provide Services or supply Products to a Customer in the Company’s sole discretion; and (b) change or correct fees or prices in a Quote by giving the Customer TWO Business Days’ notice of the change prior to acceptance of a Purchase Order.
5. Purchase Order
   1. The Customer must submit a Purchase Order to the Company within the time limit stated in the Quote, after which the Quote will expire, unless otherwise agreed by the Company.
   2. When the Company receives the Purchase Order from the Customer the Company will: (a) provide or confirm an estimated time frame (if required) for the provision of the Services or supply of the Products; and/or (b) supply an Order Confirmation matching the fees or prices stated in the Quote and/or PO; and (c) supply a Tax Invoice matching the fees or prices stated in the Quote and/or PO.
   3. The Company will use reasonable endeavours to meet any estimated timeframes for the provision of Services or delivery of Products. However, all such timeframes are estimates only and are not guaranteed. To the fullest extent permitted by law, the Company is not liable for any delay in performance except to the extent caused by the Company’s wilful default or breach of a non-excludable obligation.
6. Payment
   1. The Customer will pay for the Services and/or Products in any reasonable manner specified in the Quote, or as otherwise agreed in writing with the Company.
   2. The Company may request the Customer to pay a deposit for Products or Services or may extend credit on such terms as the Company considers fair in its sole discretion.
   3. If the Customer does not pay a Tax Invoice in full in accordance with clause 6.1, the Company may, without limiting any other rights: (a) require immediate payment of all outstanding amounts; (b) charge interest on any overdue amount at a rate of 6% per annum above the Reserve Bank of Australia cash rate, calculated daily and accruing from the due date until payment in full; (c) charge the Customer for any reasonable costs and expenses incurred by the Company as a result of the late payment, including (without limitation) administrative costs, storage costs for any Goods held by the Company, and any costs of recovery, including debt collection agency fees and legal costs on a full indemnity basis; and (d) suspend performance of the Services or supply of Products until all outstanding amounts are paid.
7. Security, Transfer of Risk and Transfer of Title
   1. The Customer grants to the Company a security interest in all Products supplied by the Company to the Customer (and their proceeds) to secure payment of all amounts owing under this Agreement.
   2. The parties agree that the security interest created under this clause is intended to be, and to the extent permitted by law is, a purchase money security interest (PMSI) for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
   3. The Customer consents to the Company: (a) registering one or more financing statements on the Personal Property Securities Register (PPSR) in respect of the security interest; (b) registering any PMSI claim where applicable; and (c) amending, renewing or discharging any such registration.
   4. The Company may, in its discretion, perfect, maintain, enforce or enforce priority of the security interest in any manner permitted by law.
   5. The Company will discharge the security interest when all monies owing under this Agreement have been received in cleared funds.
   6. Title to the Products remains with the Company and does not pass to the Customer until payment in full has been received by the Company.
   7. Risk in the Products passes to the Customer at the time the Products leave the Company’s premises for delivery, collection, or dispatch, regardless of whether transport is arranged by the Company, the Customer, or a third party.
   8. If the Company retains possession of any Products after risk has passed to the Customer, the Company will store and handle those Products with reasonable care.
   9. Retention of possession does not affect the transfer of risk under clause 7.7.
   10. Where the Company has possession of the Customer’s Goods while providing Services involving the Products, the Company has a contractual lien and security interest over those Goods to secure all amounts owing to the Company.
   11. The Company may, to the extent permitted by law: (a) retain possession of the Goods; (b) store the Goods at the Customer’s cost; and (c) where payment remains outstanding after reasonable notice, sell or dispose of the Goods and apply proceeds to outstanding amounts.
   12. To the extent of any inconsistency, this clause is intended to operate in conjunction with the PPSA, and nothing in this Agreement is intended to prevent the Company from obtaining or enforcing PMSI priority where available under law.
8. Risk of loss; Release; and Insurance
   1. Subject to clause 7.7, all risk of loss of or damage to the Goods and the Products is borne by the Customer at all times while the Goods or Products are in transit to or from the Company’s premises, including where the Company arranges or facilitates transport on behalf of the Customer.
   2. The Customer is solely responsible for all loss of or damage to the Goods and Products occurring in transit to or from the Company’s premises, and must ensure that appropriate insurance cover is in place for such transit risks. The Company does not assume the role of carrier and does not accept any liability for loss or damage occurring during transit unless expressly agreed in writing. Any transport arranged by the Company is undertaken as agent for the Customer.
   3. The Company must maintain public liability and other relevant insurance policies with a reputable insurer for such amounts as are reasonable having regard to the nature of the Services and Products.
   4. The Customer must ensure that all risks and liabilities assumed by it under this Agreement, including under clauses 7, 8, 9 and 10, are adequately insured.
   5. Subject to clause 12.11(j), where liability cannot be excluded, nothing in this Agreement excludes, restricts or modifies any rights or remedies which cannot be excluded, restricted or modified under the Australian Consumer Law or any other applicable law. Where liability cannot be excluded, the Company’s liability is limited, at its option, to: (a) the re-supply of the relevant Services; (b) the replacement of the relevant Products; or (c) the payment of the cost of having the Services re-supplied or the Products replaced.
   6. The Customer assumes all risk and liability for any loss, damage or injury arising from the use, installation or possession of the Products or Packaging Materials after completion of the Services, except to the extent caused by the Company’s breach of a non-excludable guarantee.
9. Loss or Damage to Goods in Transit
   1. To the fullest extent permitted by law, the Company is not responsible for any loss of or damage to the Goods or Products occurring while in transit to or from the Company’s premises, including where: (a) the Goods are transported at the direction of the Customer or its agents; or (b) the Company has arranged or facilitated transport on behalf of the Customer; and such loss or damage is at the Customer’s risk.
   2. Where any Goods have been damaged by the negligence of the Company while delivering the Services, clause 9.1 does not apply to the extent that the Customer’s loss is proved to have resulted from that negligence, provided that: (a) the Company will not be liable for any loss flowing from the Company’s modification or removal of the original packaging of the Goods, or the substitution of that original packaging with Packaging Materials, provided that those actions are necessary to deliver the Services; and (b) the Customer acknowledges that the Company does not independently know and cannot predict any incompatibility between the Goods and the Products, or the Packaging Materials used in providing the Services, and the Customer relies entirely on the Customer’s own judgment about these matters when ordering the Services and/or Products and alone bears all liability and loss for any such incompatibility and its consequences.
10. Cancellation
    1. If the Company is or becomes unable to provide the exact Services or Products ordered by the Customer, then the Company may cancel the Customer’s Purchase Order, or at its option, and with the Customer’s approval, supply similar Services or Products of equivalent quality and/or performance.
    2. If the Customer wishes to cancel a Purchase Order and the Company agrees to the cancellation of that Purchase Order, the Customer must pay the Company: (a) all costs and expenses reasonably incurred by the Company in connection with the Purchase Order up to the date of cancellation, including (without limitation) costs of materials, labour, procurement, storage, handling and any commitments to third parties that cannot reasonably be cancelled or mitigated; and (b) a reasonable margin (being a reasonable pre-estimate of profit) on any work performed or commitments made; (c) less any costs reasonably avoided or mitigated by the Company because of the cancellation.
    3. The total amount payable under this clause must not exceed the total price of the relevant Purchase Order.
11. Termination
    1. Without prejudice to any of the Company’s rights under this Agreement, if the Customer does not make the payment due and payable to the Company in accordance with clause 6 of these Conditions, the Company in its sole discretion, and without any liability to the Customer, may: (a) refuse to provide the Services or Products or any further Services or Products to the Customer; and/or (b) immediately terminate this Agreement with the Customer, on notice to the Customer.
12. Liability and Warranties
    1. In addition to any limitations or conditions set out in clauses 7 or 8 or any other parts of these Conditions, the following provisions control the liability of the Company (including any liability for acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of: (a) any breach of these Conditions; (b) any use made or resale of the Packaging Materials by the Customer; and (c) any representation, statement or tortious act or omission including negligence of the Company arising under or in connection with the Agreement.
    2. Except for guarantees that cannot be excluded under the Australian Consumer Law, all other warranties, conditions and terms implied by statute or common law are excluded to the fullest extent permitted by law. To the extent permitted, the Company will pass through to the Customer the benefit of any manufacturer or supplier warranties applicable to third-party products. In the case of Bedding Products, the provisions set out on Appendix A apply to those products and the notification and claim procedures described in Appendix B will apply to both Bedding and Non-Bedding Products.
    3. To the fullest extent permitted by law and subject to the Australian Consumer Law, the Company is not liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect, special or consequential loss including loss of profit or of business or depletion of goodwill arising under or in connection with any breach by the Company of its obligations under the Agreement (howsoever caused), including (without limitation) operating loss, loss of profit, loss of use, loss of goodwill, business interruption or economic loss.
    4. Nothing in these Conditions will limit or exclude the Company’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of any term that may be implied in these Conditions under sections 51 to 53 inclusive of the ACL; (d) defective products as imposed by the ACL as it relates to any Products (including Packaging Materials) used in conjunction with the provision of the Services); or (e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
    5. The Customer acknowledges and agrees that it has had the opportunity to verify the extent and adequacy of the Company’s insurance coverage, and that clause 12.4(b) is reasonable because it would be commercially unviable for the Company to accept an unlimited, uninsured risk under this Agreement.
    6. Subject to clauses 12.7 and 12.8 below, if the Product is a Bedding Product, the provisions set out in Appendix A will apply to it.
    7. The provisions set out in Appendix B will apply to both Bedding Products and Non-Bedding Products.
    8. If a Product item is a Sample, then: (a) it is indicative only, there is no guarantee of an exact match, and no warranty is given by the Company under this Agreement except for that provided for under the Australian Consumer Law; (b) if a Sample is provided at the same time as paid-for Products, the Sample is not included in the sale of the paid-for Products, but is provided separately; (c) the Company only expressly represents that, to the best of the Company’s knowledge, the Sample is representative of the stock of Products represented by the Sample that the Company holds and sells, and does not make any other representations (express or implied) regarding the Sample; (d) if the Sample is a sample of a Product made from materials the quality of which cannot be guaranteed by its manufacturer or supplier, or which is not in the ordinary course of commerce subjected to accurate or quality measurements or tests, such as milled timber, then the representations made by the Company at (c) above are modified accordingly.
    9. Samples of Products may be provided by the Company to the Customer on request, subject to the following: (a) the Customer must comply with any reasonable procedures specified by the Company when requesting or handling a Sample; (b) Samples are provided for preliminary inspection and evaluation purposes only; (c) subject to clause 12.4 and to the fullest extent permitted by law, the Company does not warrant that any Sample will be identical to or fully representative of the Products ultimately supplied, including in respect of colour, texture, composition or performance; (d) the Customer acknowledges that it is responsible for satisfying itself as to the suitability of the Products for its intended use, including by conducting any testing it considers appropriate; and (e) nothing in this clause excludes, restricts or modifies any rights or remedies which cannot be excluded under the Australian Consumer Law.
    10. If the Customer has communicated to the Company that the Customer approves the design of the Product or a Sample, then: (a) the Customer will be bound by the terms of that communication, which will be incorporated into this Agreement; (b) the Customer will not object to the design and the Product being unfit for purpose or to the quality and specifications of Product if it conforms with the Sample; and (c) to the fullest extent permitted by law, the Customer releases the Company from liability for losses arising from the approved design, except to the extent caused by the Company’s negligence or breach of a non-excludable obligation.
    11. Heat shrink wrapping and corrosion-inhibiting preservation products
        1. The Company supplies and applies heat shrink wrapping and corrosion-inhibiting preservation products with reasonable care and in good faith based on the information provided by the Customer.
        2. Any stated preservation period, design life, expected protection duration, or product lifespan is indicative only and does not constitute a warranty or guarantee of performance.
        3. The Customer acknowledges and agrees that the performance of any corrosion-inhibiting, preservation, heat shrink, VpCI or protective packaging system is inherently dependent on factors outside the Company’s control, including without limitation:
           1. storage conditions;
           2. environmental exposure (including temperature, humidity and contaminants);
           3. handling after application;
           4. sealing integrity;
           5. duration of storage or transit;
           6. site practices; and
           7. third-party interference.
        4. To the fullest extent permitted by law, the Company gives no warranty, representation or guarantee that any preservation or corrosion protection outcome will be achieved in all circumstances.
        5. The Customer is solely responsible for:
           1. determining the suitability and fitness for purpose of the preservation method for its intended use;
           2. verifying suitability prior to use, including by testing where appropriate;
           3. ensuring appropriate storage conditions and environmental controls;
           4. maintaining seal integrity after handover;
           5. implementing and maintaining an appropriate inspection and maintenance regime during storage and transit; and
           6. complying with any applicable manufacturer or supplier guidance.
        6. Unless expressly agreed in writing, the Company:
           1. does not assume responsibility as a corrosion engineer or asset preservation authority;
           2. does not undertake design responsibility for any overall preservation system; and
           3. has no ongoing obligation to monitor, maintain or re-certify any preservation or protective system after completion of the Services.
        7. Risk in the integrity and performance of any heat shrink wrap, preservation enclosure, VpCI system or protective barrier transfers to the Customer upon completion of the Services or release of the Goods from the Company’s control.
        8. The Company is not responsible for any loss of protection or deterioration caused by:
           1. puncture, damage or movement;
           2. weather or environmental exposure;
           3. removal, reuse, or interference with the packaging system; or
           4. any act or omission of the Customer or any third party after completion of the Services.
        9. To the fullest extent permitted by law, the Company is not liable for any indirect, incidental, special or consequential loss or damage, including but not limited to loss of use, loss of production, loss of profits, delay costs, demurrage, project or shutdown losses, or corrosion-related downstream losses.
        10. To the extent permitted by law, including under section 64A of the Australian Consumer Law, where the Company’s liability cannot be excluded, the Company’s liability is limited, at its option, to:
            1. in the case of Services, the re-supply of the Services or the payment of the cost of having the Services re-supplied; and
            2. in the case of Products, the replacement of the Products or the supply of equivalent Products, or the payment of the cost of replacing the Products or acquiring equivalent Products.
        11. To the fullest extent permitted by law, the Customer indemnifies the Company against any third-party claims to the extent that such claims are caused or contributed to by:
            1. any information, specifications, instructions or approvals provided by or on behalf of the Customer that are inaccurate, incomplete or misleading;
            2. the Customer’s selection of, or direction to use, any heat shrink wrapping, VpCI or preservation products or methods;
            3. the Customer’s failure to verify suitability for its intended use (including by testing where appropriate);
            4. any misuse, modification, removal, reuse, improper storage, handling or installation of the Products or Goods by the Customer or any third party after completion of the Services; or
            5. the Customer’s failure to comply with applicable laws or manufacturer guidance.
        12. This indemnity is reduced proportionately to the extent that any act or omission of the Company contributed to the relevant loss and does not apply to the extent that any claim, loss, liability, damage or expense is caused or contributed to by the Company’s negligence, breach of this Agreement, breach of statutory duty (including any non-excludable guarantee under the Australian Consumer Law), wilful misconduct or fraud.
        13. To the extent the Company provides recommendations, the Customer acknowledges that such recommendations are based on information provided by the Customer, and the indemnity in this clause applies only to the extent that any claim arises from inaccurate or incomplete information supplied by the Customer or directions given by the Customer.
    12. Where Products supplied by the Company include or incorporate products manufactured or supplied by third parties (including but not limited to Presserv, Cortec Corporation, Cortec Global Services Inc., or Cortec Global Services Australia Pty Ltd or any other OEM):
        1. the Company does not provide any warranty in respect of such products other than those required under the Australian Consumer Law;
        2. to the extent permitted by law, the Company’s liability in respect of such products is limited in accordance with clause 12.11(j), and the Customer acknowledges that any additional warranties may be provided by the original manufacturer or supplier;
        3. any technical information, product data or performance guidance originating from a third-party manufacturer is provided on a pass-through basis only, and, to the fullest extent permitted by law, the Company does not warrant the accuracy or completeness of such information;
        4. the Company is not the manufacturer of such products and does not provide any manufacturer’s warranty in respect of them;
        5. nothing in this clause excludes, restricts or modifies any rights or remedies which cannot be excluded under the Australian Consumer Law; and
        6. the Customer acknowledges that Products sourced from international manufacturers or suppliers may be produced to standards, specifications or tolerances that differ from those applicable in Australia. Unless expressly stated in writing, the Company makes no representation or warranty that such Products comply with any particular Australian or international standard.
    13. The Customer acknowledges and agrees that it is solely responsible for determining the technical, environmental and performance suitability (fitness-for-purpose) of the Products or Services for the Customer’s specific needs. The Company may make recommendations, but the Customer remains solely responsible for establishing fitness-for-purpose.
13. Force Majeure
    1. If the performance or observance of the Company’s obligations under this Agreement is prevented, restricted or affected by a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the Company’s reasonable control, the Company will notify the Customer of the cause and after 30 days of the Customer’s receipt of that notice this Agreement may be terminated by either the Company or the Customer without penalty.
    2. Any additional costs reasonably incurred by the Company as a direct result of a force majeure event or regulatory change will be recoverable from the Customer, provided that:
       1. such costs are reasonably and properly incurred; and
       2. the Company provides reasonable supporting detail of those costs.
       The Company may include a reasonable margin not exceeding 10% on such costs.
14. Privacy
    1. The Customer agrees to the Company collecting, using, and disclosing the personal information of the Customer (including the Customer’s principals, employees, and contractors) in compliance with the Company’s Privacy Policy, which can be viewed at the Company’s website axisindustrial.com.au, and any applicable privacy law.
    2. Except for information covered by the Company’s Privacy Policy, any material or information submitted to the Company (including testimonials) will be considered as having been voluntarily submitted for use by the Company and be treated as non-confidential and non-proprietary information.
    3. Subject to clause 14.1 and applicable privacy laws, the Company may collect, use and disclose the Customer’s information: (a) for the primary purposes of performing its obligations under this Agreement, including providing Services, supplying Products, processing payments, and managing the business relationship with the Customer; (b) for related secondary purposes that the Customer would reasonably expect, including internal administration, risk management, quality assurance, and improving the Company’s Services and Products; (c) where the Customer has provided its express or implied consent; or (d) where required or authorised by law. The Company must not use or disclose personal information of the Customer for direct marketing or other unrelated commercial purposes without the Customer’s consent, unless otherwise permitted by law.
    4. To the extent that the Customer provides information that is not personal information, the Customer grants the Company a non-exclusive, royalty-free licence to use that information for its internal business purposes, including analytics, service improvement and operational efficiency.
15. Confidential Information
    1. The Customer acknowledges that the Company has disclosed and may from time to time disclose to the Customer certain non-public confidential information and documentation about the Company’s Services, marketing, prices and fees, and information about the Company’s trade secrets and intellectual property, (Confidential Information).
    2. The Customer must: (a) only use the Confidential Information solely for the purposes contemplated by this Agreement; and (b) not during the term of this Agreement or at any time after this Agreement has come to an end, disclose (whether indirectly or directly) to any third party the Confidential Information, other than what may be required to be disclosed under law, without the Company’s express, written consent.
16. Updates
    1. The Company reserves the right to revise, change and modify: (a) its standard fees and prices for future Orders, provided that such changes do not apply to any Quote already accepted by the Customer; and (b) these Conditions, which are available in their latest form on the Company’s website axisindustrial.com.au
    2. The Company may amend, update or modify these Conditions from time to time by publishing the updated version on its website. The Company will use reasonable efforts to notify the Customer of any material changes to these Conditions, including by email or other written communication where practicable. Any amended Conditions will apply: (a) immediately where the change is required to comply with applicable law; or (b) otherwise from the date specified in the notice of change, or if no date is specified, from the Customer’s next Order placed after the updated Conditions have been made available.
    3. The Customer is responsible for reviewing the current version of the Conditions prior to placing each Order. If the Customer does not agree to the amended Conditions, the Customer must not place further Orders after the updated Conditions become effective.
    4. Nothing in this clause affects any Orders placed and accepted prior to the effective date of any variation.
17. Applicable Laws
    1. This Agreement is governed by the laws of the State of Western Australia.
    2. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia in all matters arising under this Agreement.
18. Dispute Resolution
    1. If a dispute arises between the Company and the Customer in connection with this Agreement, then, before resorting to litigation (except for urgent injunctions), the party claiming to be aggrieved must give the other party a notice specifying the nature of the dispute and requesting its resolution under this clause.
    2. Following service of notice of the dispute under clause 18.1, the parties will negotiate within seven days in good faith with a view to resolving the dispute.
    3. If the dispute is not resolved by negotiation under clause 18.2 within a further 14 days, either party may, and the parties must refer the dispute to a mediator selected by the responsible officer of the Chamber of Commerce and Industry of Western Australia, the ACICA or LEADR. The parties will participate in the mediation in good faith with a view to resolving the dispute, will be equally responsible for the mediator’s fees, and will each bear its own costs of participating in the mediation.
    4. If a dispute is not resolved by mediation within 28 days of commencement of mediation under clause 18.3, then either party (but not before the expiration of the 28 days) may take such other action as the law permits to resolve the dispute.
19. Severability
    1. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be severed and the remainder will continue in full force and effect.
20. Waiver
    1. A failure or delay by a party to exercise a right does not constitute a waiver of that right.
21. Assignment
    1. The Customer must not assign or transfer its rights or obligations under this Agreement without the prior written consent of the Company.
    2. The Company may assign this Agreement on notice to the Customer.
22. Notices
    1. Any notice under this Agreement must be in writing and delivered by hand, post or email to the recipient’s last known contact details.

APPENDIX A – Special Provisions Applying to Bedding Products

1. The Company does not provide any express warranty in relation to Bedding Products, except as required under applicable law, including the Australian Consumer Law.
2. The Customer agrees that paragraph A1 is reasonable because Bedding Products:
   1. may be subjected to damage through misuse, abuse, overuse, accident or neglect, including during transportation and handling, which cannot be controlled or prevented by the Company;
   2. could be used for any purpose other than the purpose for which they were designed;
   3. could be altered or modified, or repaired incorrectly, or in some manner that negatively affects their integrity or durability;
   4. could be improperly stored, loaded onto a vehicle, installed, fitted or combined with another object, or be improperly installed as a fixture in a building, or be improperly maintained;
   5. could be subjected to temperature variations, excessive loads, stresses, dampness, high humidity, chemicals or corrosives, vapours, weathering, violent movements and any other usage or environmental factors that weaken or damage their structure, integrity, materials, or components; or
   6. could be damaged by some other abusive practice or catastrophic occurrence.

APPENDIX B – Notification and Claims Procedure

1. In the event that the Customer wishes to claim that the Company has breached any warranty applying under this Agreement to a Non-Bedding Product or Bedding Product, the Customer agrees to follow the procedures set out in this Appendix B.
2. The Customer must gather sufficient evidence that the relevant product is defective in a manner for which the Company is liable, and present this to the Company. This evidence must include photographs wherever possible.
3. The Company may reasonably request further information, including a written statement describing the alleged defect and the use and handling of the Product.
4. The Customer must give the Company a reasonable opportunity to inspect and test the allegedly defective Product.
5. If the Company and Customer are unable to agree on the extent or value of the Customer’s alleged loss arising from the allegedly defective Product, they will appoint an independent expert to conduct the valuation and will share the cost of that valuation equally.
6. Further and subject to clause 12.4, if the Company accepts that the relevant warranty given under this Agreement or imposed by law has been breached in respect of any Product, the Company, at its sole option, will either offer to refund to the Customer the purchase price paid for the relevant Product, or replace the Product with an equivalent item.
7. Further to clause 12.4, the Company will not be liable to the Customer or any person claiming through the Customer for any incidental, indirect, consequential, or special damages in respect of any breach of any warranty in relation to Products that the Company gives in this Agreement.