PriVATE LABEL LAB Pty Ltd – Terms and Conditions of Sale

 

1 Interpretation

In these Conditions of Sale:

'Private Label Lab' means Private Label Lab Pty Ltd (ABN 73 605 448 806);

'Buyer' means the person, firm or company purchasing the Goods;

'Goods' means the products subject to a contract between the Buyer and Private Label 

Lab, including a Buyer purchase order that has been accepted by Private Label Lab;

'PPSA' means the Personal Property Securities Act 2009 (Cth);

'PMSI' means a purchase money security interest, as defined in the PPSA;

'Proceeds' has the meaning given to it in section 31 of the PPSA;

'Consumer' has the same meaning as prescribed under the Competition and Consumer 

Act 2010 incorporating the Australian Consumer Law.

2. General

2.1 Unless otherwise agreed in writing, every purchase order, sale, quotation and contract 

placed with Private Label Lab shall be subject to these Conditions of Sale to the extent 

that the same are applicable which are deemed to be agreed and accepted by all parties 

involved and override any standard terms and conditions stipulated, incorporated or 

referred to in the Buyer's purchase order (or similar).

2.2 These Conditions of Sale shall be governed by the laws applicable in Victoria, Australia 

and the Buyer submits to the jurisdiction of that State's Courts and Tribunals.  

2.3 Private Label Lab may at any time change these Conditions of Sale by publishing new 

Conditions of Sale, in which case the new Conditions of Sale will come into effect 14 

days after they are published at http://www.privatelabellab.com.au/our-terms  The new Conditions of Sale will 

come into effect notwithstanding that the Buyer does not receive notice (including if any 

notice was accidentally omitted to be given).

2.4 If any clause or part of these Conditions of Sale not being of fundamental nature is held 

to be illegal or unenforceable, the validity and enforceability of the remainder of these 

Conditions of Sale shall not be affected.

2.5 The Buyer acknowledges that it is a commercial buyer and that it is not a Consumer and 

that it is buying the Goods for the purpose of re-supply on its own account.

2.6 The Buyer represents and acknowledges, in placing a purchase order or order with 

Private Label Lab, that it is of full legal capacity and has full power and authority to 

execute, deliver and perform its obligations under any contract with Private Label Lab.

3. Price

3.1 The Buyer shall pay the price of the Goods ordered and supplied as stated in an invoice 

from Private Label lab which will be a price exclusive of GST (as defined under the A 

New Tax System (Goods and Services Tax) Act 1999, as amended ("the GST Act")).

3.2 a) Private Label Lab shall provide the Buyer with a tax invoice including the ABN 

number and other details required in the GST Act.

b) The Buyer shall pay GST at the rate set by the GST Act and shown on the tax 

invoice.

3.3 Unless otherwise agreed in writing, the price is FOB Plant and is exclusive of packaging 

costs, freight charges, delivery costs, bank charges and such other charges notified by 

Private Label Lab to the Buyer which are unable to be quantified in advance ('Price 

Additions'), all of which costs if incurred are payable by the Buyer.

3.4 If the cost to Private Label Lab of supplying the Goods not yet delivered is materially 

increased by any dispute or cause, and the parties concerned cannot agree on how 

much such increase shall be borne, Private Label Lab or the Buyer may cancel the 

Contract without liability in respect of such undelivered Goods.

3.5 Where delivery of the Goods is to be made by instalments, each delivery shall be 

treated as a separate contract and failure, suspension or delay in any delivery or defect 

in the Goods delivered shall not vitiate the Contract as to other Goods.

3.6 Private Label Lab shall be entitled to deliver Goods ordered by the Buyer subject to up 

to a +/-10 per cent variation in the quantity of Goods ordered (to allow for freight and 

packaging issues). In such an event, the Private label Lab tax invoice for such Goods 

shall reflect the actual Goods delivered.

4. Acceptance and Risk

4.1 The Buyer accepts the Goods and the Goods are at the Buyer's risk ex Works, whether 

the Goods are delivered by Private Label Lab or by someone other than Private Label 

Lab or contracted by the Buyer.  If the Buyer wishes to insure against loss or damage to 

the Goods after ex Works, it shall be the Buyer's responsibility to do so.

4.2 All delivery dates are estimates only and Private Label Lab shall not be liable in 

damages for any delay nor shall the Buyer be entitled to refuse or to accept delivery, 

except where delay or an unreasonable length has occurred due to circumstances within 

Private Label Lab's control without limiting the generality of the foregoing.  The following 

circumstances shall be deemed NOT to be within Private Label Lab's control:

Act of God, war, riots, civil commotions, strikes, lockouts, trade disputes, fires, 

breakdowns, interruptions of transport, government action, and delay in delivery by 

Private Label Lab's suppliers.

During any such period of delay, the Buyer, after giving reasonable prior written notice of 

its intention to do so, shall be at liberty to purchase elsewhere such Goods only as shall 

be necessary for the Buyer's immediate requirements and to cancel a delivery from 

Private Label Lab of any corresponding quantities so purchased.

5. Terms of Payment

5.1 The Buyer shall pay the price for all Goods ordered by the Buyer, including all Price 

Additions ('Total Price') on presentation of invoice and bill of lading.  Unless otherwise 

stated on the invoice, this shall be deemed the 'Due Date'.

5.2 Unless the Buyer is a Consumer:

a) if the Buyer does not pay the full amount of the Total Price on or before the Due 

Date, Private Label Lab may charge a monthly accounting fee equal to 1.5% of the 

overdue amount for each month or part of month that any amount is overdue; and

b) all expenses incurred by Private Label Lab in collecting overdue payment from the 

Buyer, including debt collection agency, legal and court fees, shall be payable by 

the Buyer to Private Label Lab as a debt due forthwith upon demand from Private 

Label Lab.

5.4 The Buyer shall send all amounts due under these Conditions of Sale to the address of 

Private Label Lab as detailed in its invoice.

5.5 If the Buyer shall fail to make any payment on the Due Date or becomes bankrupt or 

enters into liquidation (other than for the purpose of amalgamation or reconstruction) or 

makes any composition arrangement with creditors or has a receiver appointed of its 

undertaking property or assets or any part thereof, Private Label Lab shall have the 

option to withhold or cancel further deliveries, provided that the failure on the part of 

Private Label Lab to exercise such option in respect to one or more deliveries shall not 

affect their right to exercise it in respect of other deliveries.

5.6 If the Buyer has been granted credit then the credit can be withdrawn at any time and 

any orders cancelled by Private Label Lab in its sole discretion.

6. Exclusivity of supply

6.1 Unless otherwise agreed in writing, the Buyer acknowledges and accepts that Private 

Label Lab supplier relationships are of critical importance to Private Label Lab.  As such, 

the Buyer promises not to solicit approach or accept an approach from a supplier to 

Private Label Lab, for a period of 12 months from the date Private Label Lab last 

supplied Goods to the Buyer from that supplier, with a view to obtaining supply of goods 

identical or similar to the Goods previously supplied by Private Label Lab, directly from 

that supplier.  The Buyer acknowledges and agrees that this restriction on the Buyer is 

fair and reasonable and goes no further than to protect the legitimate business interests 

of Private Label Lab.

6.2 In the event that the Buyer breaches Clause 6.1, Private Label Lab may, at its election, 

require the Buyer to pay to it an amount equal to 30% of the value of goods supplied to 

the Buyer by a supplier within the 12 month period referred to in Clause 6.1. The Buyer 

accepts and agrees that this amount seeks to represent a genuine pre-estimate of loss 

that Private Label Lab will suffer as a consequence of the Buyer's breach of Clause 6.1.

7. Claims

7.1 The Buyer shall inspect or shall be deemed to have inspected the Goods upon delivery 

to the Buyer.  Where the Goods supplied are not in accordance with the Contract, the 

Buyer shall give notice in writing within 7 days of receipt and if agreed upon, Private 

Label Lab shall have the option to:

a) credit the Buyer with the price; or

b) replace same.

Nothing in this Clause excludes any rights of the Buyer under the Australian Consumer 

Law.

7.2 Goods are sold and installation, service or advice is given in good faith in connection 

therewith on condition that Private Label Lab and their servants are not liable in contract, 

tort or otherwise for any loss, consequential damages or injury of any nature whatsoever 

to persons or property arising there from, including damages resulting from any non-

operation of the Goods that are not reasonably foreseeable.

8. Returns

8.1 The Buyer may only return goods to Private Label Lab for credit if:

a) the prior written approval of Private Label Lab for the return has been obtained; 

and

b) the freight costs on the return have been paid by the Buyer.

8.2 If the Buyer returns the Goods otherwise than in accordance with clause 8.1:

a) Private Label Lab may at its sole discretion accept the return and grant a credit 

to the Buyer; or

b) if Private Label Lab does not accept the return, Private Label Lab may hold the 

Goods on the Buyer's behalf at the Buyer's expense until arrangements 

satisfactory to Private Label Lab are made by the Buyer for the disposal of the 

Goods.

8.3 Any credit given by Private Label Lab for Goods returned by the Buyer and accepted by 

Private Label Lab is subject to a restocking fee equal to 35% of the purchase price of 

the Goods plus return freight expenses.

9. Cancellation

No order for Goods placed by the Buyer and accepted by Private Label Lab may be 

cancelled or deferred without prior consent in writing of Private Label Lab and in the 

case of custommade Goods ordered by the Buyer, no order for such Goods may be 

cancelled after:

a) Private Label Lab has scheduled manufacture of such Goods; or

b) Private Label Lab has purchased materials required for the manufacture of such 

Goods.

10. Property

10.1 Property in and title to each unit of the Goods supplied shall not pass to the Buyer until 

payment has been received by Private Label Lab in full (each unit being considered as a 

whole).

10.2 Until property in the Goods passes to the Buyer hereunder the Buyer shall, unless 

otherwise agreed by Private Label Lab in writing, store the Goods so that they are 

clearly identifiable as the property of Private Label Lab.

10.3 If the Buyer fails to make payment in accordance with these Conditions of Sale or 

Private Label Lab reasonably believes the Buyer is unable to make payment for the 

Goods within prescribed terms, the servants or agents of Private Label Lab shall be 

entitled to enter any premises in which the Goods are stored to repossess the Goods, 

without being in any way liable to trespass.

10.4 Unless payment has been made in full to Private Label Lab, the Buyer shall not be 

entitled to resell the Goods or part thereof.

11. PERSONAL PROPERTY SECURITIES ACT

11.1 The Buyer agrees that these Conditions of Sale create a security interest (including, 

where applicable, a PMSI) in Goods (and their Proceeds) supplied by Private Label Lab 

to the Buyer from time to time.

11.2 The Buyer agrees to do all things necessary and execute all documents reasonably 

required by Private Label Lab to register the PMSI granted by the Buyer under these 

Conditions of Sale, and ensure that Private Label Lab acquires a perfected security 

interest in the Goods under the PPSA.

11.3 The PMSI does not lose its priority as a result of the renewal, refinance, consolidation or 

restructure of the subject matter of these Conditions of Sale or any purchase money 

obligations of the Buyer.

11.4 Until title to Goods passes to the Buyer, the Buyer waives its rights under sections, 95, 

118, 120, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the 

PPSA, to the extent that is permitted by law. Private Label Lab may also contract out of 

any other provisions of the PPSA not specified in this clause as determined by Private 

Label Lab from time to time, provided that is also permitted under the PPSA.

11.5 Where Private Label Lab has rights in addition to those under Part 4 of the PPSA, those 

rights continue to apply.

11.6 The Buyer agrees that repossession and retention of Goods pursuant to the PPSA will 

only satisfy so much of the amounts owing by the Buyer to Private Label Lab as is 

equivalent to Private Label Lab's estimation of the market value of the Goods as at the 

date of repossession, and the repossession and retention will immediately extinguish 

any rights or interest the Buyer has in the Goods.

11.7 Until title to Goods passes to the Buyer, the Buyer must not give to Private Label Lab a 

written demand, or allow any other person to give to Private Label Lab a written 

demand, requiring Private Label Lab to register a financing change statement under the 

PPSA in respect of the Buyer, the Goods, or enter into or allow any other person to 

enter into the personal property securities register a financing change statement under 

the PPSA in respect of the Goods.

11.8 The Buyer will be responsible for payment of any fees (and any other costs) that Private 

Label Lab incurs in relation to investigating, perfecting or registering its security interest 

in the Goods, and those fees and costs may be added as a charge on invoices issued 

by Private Label Lab to the Buyer.

11.9 Money that Private Label Lab receives from or on account of the Buyer may be applied 

by Private Label Lab in the following order, or in any other order that Private Label Lab 

may determine in its absolute discretion:

a) (non-secured obligations) first, to satisfy any obligation owed by the Buyer to 

Private Label Lab that is not secured by a security interest in Goods;

b) (secured obligations but not PMSIs) then, to satisfy any obligation owed by the 

Buyer to Private Label Lab that is secured by a security interest in Goods, but not 

by a PMSI;

c) (PMSIs satisfied using related proceeds) then, to satisfy any obligation owed by 

the Buyer to Private Label Lab that is secured by a PMSI in Goods for that 

obligation and using proceeds from the sale of the Goods secured by that PMSI; 

and

d) (PMSIs satisfied using other sources) then, to satisfy any obligation owed by the 

Buyer to Private Label Lab that is secured by a PMSI in Goods using funds or 

proceeds from any source.

11.10 The Buyer must not assign or factor its right and interest in any debt owed by a 

Buyer of the Buyer to the Buyer on account of the proceeds of sale of any Goods 

by the Buyer on credit or deferred payment terms without Private Label Lab's prior 

written consent.

12. Buyer's Statutory Rights

These Conditions of Sale shall not exclude, limit or modify the rights, entitlements 

and remedies conferred upon the Buyer, or the liabilities imposed upon Private 

Label Lab under Commonwealth or State legislation, but are subject thereto all 

excludable conditions and warnings which are hereby excluded where the Buyer 

is not a Consumer.

13 Buyer as Trustee

If a Buyer enters into a contract with Private Label Lab as trustee of a trust, the 

Buyer:

a) will be liable under that contract both personally and in its capacity as trustee of 

that trust;

b) warrants that it has full and valid authority pursuant to the terms of the trust deed of 

that trust to enter into that contract; and

c) warrants that it has and will have from time to time against the trust fund or trust 

property of the trust a right of indemnity from the assets of the trust and that the 

right of indemnity has not been excluded by any provision of the trust deed or any 

breach of trust and that the Buyer will not release or otherwise prejudice its rights 

of indemnity from the assets of the trust.