1. Definitions and Interpretation
    1.1 In these Trading Terms, unless the context otherwise requires:

    Claim

    any allegation, debt, cause of action, Liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise

    Customer

    means the person or entity named as the customer on any Order or Tax Invoice

    Delivery Point

    is the location or address that the Customer nominates and HOA agrees to deliver the Goods for collection by the Customer (which may incur delivery fees)

    Force Majeure Event

    a cause beyond the reasonable control of HOA and including but not limited to the following events or occurrences and their effects: acts of God or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargoes, riot or civil disturbances, governmental or governmental agency action and restraints, strikes or other labour disputes which affects the supply of the Goods, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court of competent jurisdiction, change in laws applicable to the production of the Goods, or any other occurrence which is beyond the control of HOA and which HOA could not take reasonable measures to prevent or avoid

    Goods

    means the health care, skincare and cosmetic products described on the Order and supplied by HOA

    GST

    has the meaning it has in the GST Act

    GST Act

    the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)

    HOA

    means Hive of Activity Pty Ltd A.C.N 167 040 422

    IP Rights

    all rights now or in the future conferred under statute, common law or equity, or in relation to:

    • patents and inventions, designs, trade marks, trade secrets, domain names, copyright and moral rights, all rights to have information (including, know-how, operating procedures, technical information, computer programs, applications, rights in mobile applications and rights in the contents of any website) kept confidential and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967, whether or not registered or unregistered, the subject of an application for registration, or are registrable or unregistrable; and
    • goodwill, reputation or distinctiveness in connection with the supply of goods in trade or commerce, including, without limitation business names, trade or brand names, get-up, presentation or appearance (including colours or combination of colours)

    Liability

    includes all liabilities (whether actual, contingent or prospective), Losses, damages, costs, charges and expenses of whatsoever nature or description irrespective of when the acts, events or things giving rise to the liability occurred

    Loss

    includes any damage, loss, cost, Claim, Liability or expense (including legal costs and expenses) including any consequential or indirect losses or economic losses or loss of profits

    Obligation

    any of the obligations of a party in respect of or arising out of these Trading Terms and includes any undertaking, duty, obligation, warranty, responsibility, Liability, guarantee or indemnity of any kind whatsoever, whether legal, equitable, statutory or otherwise, in respect of or arising out of these Trading Terms

    Order

    means an order placed by the Customer to HOA pursuant to clause 3.1 for the supply of Goods subject to these Trading Terms

    PPSR

    means the Personal Property Securities Register pursuant to the Personal Property Securities Act 2009 (Cth)

    Price

    means the price fixed by HOA from time to time for each type and quantity of Goods

    Tax Invoice

    means each and every tax invoice issued by HOA to the Customer relating to the Goods, which must be a valid tax invoice pursuant to the GST Act

    Taxable Supply

    has the meaning it has in the GST Act

    Trading Terms

    means these terms and conditions which form part of each Order

    1.2 In these Trading Terms, unless the context otherwise requires
    (a) singular includes the plural and vice versa;
    (b) a gender includes all other genders;
    (c) the word “person” includes a natural person and any body or entity whether incorporated or not;
    (d) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
    (e) other grammatical forms of defined words or expressions have corresponding meanings;
    (f) the headings are used for convenience only and do not affect the interpretation of these Trading Terms;
    (g) a reference to a document includes the document as modified from time to time and any document replacing it;
    (h) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
    (i) the word "include" or any form of that word, when introducing a list of things, does not limit the meaning of the words to which the list relates to those things or to things of a similar kind;
    (j) examples are descriptive only and not exhaustive; and
    (k) money amounts are stated in Australian currency unless otherwise specified.
    2. Application
    2.1 These Trading Terms will apply to all Goods ordered by the Customer from HOA unless expressly waived by HOA in writing.
    2.2 These Trading Terms may be varied by HOA on thirty (30) days notice to the Customer.
    3. Orders

    3.1 Order Requirements

    In order for an Order to be valid and complete, it must:

    (a) Be in the form approved by HOA;
    (b) Be in writing (or the electronic equivalent);
    (c) Be signed or submitted by the Customer; and
    (d) Specify the type and quantity of Goods requested.
    3.2 Order confirmed
    (a) An Order is only confirmed, and HOA is only obliged to supply Goods once it has: 
    (i) Received a valid and complete Order from the Customer; and
    (ii) Provided confirmation to the Customer in writing of its receipt and acceptance of the Order.
    (b) HOA has the right to reject any Order without assigning any reason therefore.
    3.3 Variation to or cancellation of Orders
    (a) HOA is not obliged to consider any request for variation to an Order after that Order has been accepted.
    (b) HOA is under no obligation to consider any request for cancellation of an Order after it has been submitted.
    (c) If the Customer attempts or seeks to vary or cancel an Order after it has been accepted by HOA then the Customer may be liable for all costs, expenses and Losses incurred by HOA resulting from such cancellation or variation of Order.
    4. Prices and variation
    4.1 Price of Goods
    (a) HOA may vary the Price of the Goods from time to time at its absolute discretion without having to serve any notice on the Customer.
    (b) An Order for Goods will be supplied at the Price in place at the time of the Order being submitted unless additional Goods are sought as a variation to an existing Order.
    4.2 Additional charges
    In addition to the Price, the Customer agrees to pay to HOA:
    (a) All taxes, stamp duty or other statutory charges or levies payable by HOA or the Customer in relation to the supply of the Goods;
    (b) Delivery charges;
    (c) Storage charges or fees where the Goods are not able to be delivered;
    (d) All legal costs (on a solicitor/client basis) and disbursements incurred by HOA in connection with the supply of the Goods or enforcement of the Order;
    (e) All costs and Losses incurred by HOA as a result of any request for variation to or cancellation of a confirmed Order;
    (f) All costs and Losses incurred by HOA in relation to the recovery return or repossession of Goods from the Customer.

    4.3 Amount due

    The final amount due in respect of an Order will be the amount shown on the Tax Invoice supplied by HOA to the Customer.

    5. Payment terms

    5.1 The Customer must pay to HOA the full amount due in respect of the each Order on the date that the Customer places the Order subject to HOA having provided a valid Tax Invoice.

    5.2 If the Customer has applied for credit from HOA and been approved for the granting of credit by HOA, then the Customer must pay the amount due within:

    (a) The date specified on the Tax Invoice as the due date for payment; or
    (b) 14 days from the Delivery Date.

    5.3 Notwithstanding any date for payment, the Customer must at all times ensure that the total monies outstanding at any one time do not exceed the approved credit limit that has been pre-determined by HOA upon approving an application for credit.

    5.4 Interest will accrue any overdue monies in accordance with clause 2 of these Trading Terms.

    6. GST

    6.1 Price GST inclusive

    Except as otherwise provided in the acceptance of an Order, the Price is inclusive of all taxes including impost, levy, deduction, charges, withholding or tax of any kind whatsoever, including GST.

    6.2 Imposition of GST

    If the supply of Goods is a Taxable Supply, the Customer must pay, in addition to any consideration (stated as being exclusive of GST) payable by the Customer under the Order, an additional amount calculated by multiplying the prevailing GST rate by the consideration for the relevant supply payable by the Customer, provided always that HOA issues a valid Tax Invoice to the Customer.

    6.3 Adjustments

    If the amount recovered from the Customer on account of GST differs from the amount of GST payable at law by HOA in respect of the supply, the amount payable by the Customer will be adjusted accordingly.

    7. Force Majeure Event

    7.1 Suspension of Obligations

    If HOA is unable, wholly or partly, by reason of a Force Majeure Event to supply the Goods in accordance with the Order, then HOA must:

    (a) give the Customer immediate notice of the Force Majeure Event; and
    (b) use all reasonable endeavours to remove the Force Majeure Event as quickly as possible.

    7.2 HOA may use third party

    If by reason of the Force Majeure Event, HOA cannot meet any of its Obligations for a period of time, HOA may:

    (a) contract with a third party to supply the Goods (or any part of them) for the period of the Force Majeure Event; or
    (b) cancel the Order and refund all monies paid to the Customer.

    7.3 No liability

    The Customer acknowledges and agrees that HOA will not be held liable for any delay or inability to complete its Obligations by the agreed timelines or in accordance with the terms of the Order by reason of a Force Majeure Event.

    8. Delivery

    8.1 Delivery Point

    (a) The Customer will specify the preferred Delivery Point on the Order.
    (b) HOA may charge the Customer a reasonable delivery fee.
    (c) The Customer must ensure that there is access by vehicle on a properly constructed roadway or for regular mail delivery.
    (d) In the event that the Customer is not present at the Delivery Point at the time of delivery, the Customer authorises HOA to leave the Goods at the Delivery Point and agrees not to make any Claim for any damage or Loss incurred as a result of the Goods being left.
    (e) If for any reason the Goods cannot be delivered to the agreed Delivery Point, the Customer will be responsible for all costs, expenses and Losses incurred by HOA in having to return the Goods or redeliver.

    8.2 Delivery Date

    HOA agrees that it will make all reasonable attempts to deliver the Goods to the Delivery Point within the estimated time for delivery.

    8.3 Delivery complete

    Delivery is deemed to be complete when the Goods are delivered to the Delivery Point.

    9. Acceptance of Goods / Claims

    9.1 It is the responsibility of the Customer to inspect the Goods immediately upon delivery.

    9.2 The Customer will have seven (7) days from the date of delivery to notify HOA that the Goods are not acceptable either due to:

    (a) A shortage of Goods;
    (b) Damage to the Goods; or
    (c) Defects or fault in the Goods

    9.3 HOA reserves the right to inspect the Goods and to make its own assessment of the Goods that have been reported as unacceptable.

    9.4 Where both parties agree that the Goods are unacceptable, HOA may elect, at its absolute discretion, to either:

    (a) Replace the Goods;
    (b) Correct the Goods; or
    (c) Offer a refund of any monies paid for those Goods.

    9.5 If the Customer fails to make any Claim to HOA within seven (7) days from the date of delivery, the Customer is deemed to have agreed that the Goods were acceptable at the time of delivery and comply with the Order.

    10. Title and risk

    10.1 Risk in the Goods passes to the Customer immediately upon dispatch by HOA. To the extent permitted by law, HOA accepts no liability (including liability relating to a claim of negligence) for breakages or loss of the Goods in transit unless the Goods were delivered by HOA under a separate delivery contract and HOA will not be liable for consequential loss or pure economic loss suffered by the Customer by reason of breakage or loss.

    10.2 Notwithstanding the above, the title in the Goods does not pass to the Customer until HOA has received payment in full of any Tax Invoice provided by HOA in connection with the supply of the Goods.

    10.3 Until payment is received by HOA in full, the Customer holds the Goods on trust and as bailee for HOA

    10.4 The Customer, by accepting delivery of the Goods agrees that:

    (a) It will at all times store the Goods so that they can be identified and cross referenced to particular Tax Invoices;
    (b) It shall have the power to sell the Goods as agent for and on behalf of HOA provided that:
    (i) All proceeds of that sale shall be paid into and kept in a separate account;
    (ii) Separate records shall be maintained by the Customer in respect of that account;
    (iii) HOA shall be entitled to maintain a Claim against the proceeds of sale of any other goods into which the Goods have been fitted or installed;

    (c) HOA shall be entitled to enter the Customer's premises at any time and without prior notice in order to re-take possession of the Goods;

    (d) It must insure against the risk in the Goods (given that risk in the Goods passes to the Customer on delivery);
    (e) It must, if required, deliver up the Goods to HOA at its own cost and expense; and

    (f) Each of the above provisions is severable if they are judged to go beyond what is reasonable.

    10.5 The right of the Customer to deal with the Goods will immediately cease upon the appointment to the Customer of either a liquidator, receiver, manager, administrator, provisional liquidator or bankruptcy trustee.

    11. Customer warranties

    11.1 The Customer warrants and acknowledges that:

    (a) Each of them has read and understands these Trading Terms;
    (b) The Customer can pay its debts as and when they fall due;
    (c) The provision of credit is conditional upon each director guaranteeing the Customer’s Obligations (if a company);
    (d) The person placing the Order is over the age of 18;
    (e) The Goods provided by HOA are based on the information provided to it by the Customer and referred to in the Order;
    (f) It will not by reason of an Order, own or have any interest in or right to use any IP Rights owned or used by HOA; and

    The Customer promises not to make any Claim or seek to withhold payments or avoid its Obligations in respect of any of the above matters.

    12. HOA’s warranties

    12.1 Warranties

    (a) Without limiting any other warranties contained herein, HOA further warrants that all Goods will:

    (i) Be reasonably fit for the purpose for which they are manufactured; and
    (ii)  Comply with applicable laws of Australia.
    (b) HOA expressly warrants (unless otherwise limited by it in writing), that it will inspect and at its own discretion and option, either replace or repair any Goods supplied by it which are proved to be defective due to faulty workmanship or materials.
    (c) HOA is not obliged to commence any replacement process until the defective Goods are returned to HOA.
    (d) If the Goods are not capable of replacement or correction then HOA may offer a credit in exchange for the defective Goods equal to the Price paid for the Goods and shown on the Tax Invoice

    (e) HOA's warranty shall not apply in respect of:

    (i) Incorrect Goods ordered by the Customer; or
    (ii) Normal use in accordance with directions, guidelines or normal standards.

    13. Liabilities and Indemnities

    13.1 Indemnity by HOA

    HOA indemnifies the Customer against any Claim or Loss suffered or incurred by the Customer, which may arise from any breach by HOA of any of the warranties given by HOA under these Trading Terms.

    13.2 Indemnity by the Customer

    To the extent permitted by Law or these Trading Terms, the Customer indemnifies HOA against any Claim or Loss suffered or incurred by HOA or third persons, which may arise from:

    (a) The Customer provided information containing any errors, omissions or misleading information;
    (b) Any breach by the Customer of any warranties given by or Obligations of the Customer under these Trading Terms;
    (c) Any delay or extension of the estimated delivery date by HOA;
    (d) Any defect or error in the delivery of the Goods; and
    (e) Any injury, death, damage or Loss incurred by the Customer, its personnel, agents, customers or third parties resulting from any use of the Goods not in accordance with the advice of HOA.


    14.  Default by the Customer

    14.1 Default

    The Customer will be in default in the event that:

    (a) It has breached any one of the warranties made by the Customer under these Trading Terms; or
    (b) It has failed to perform any of its Obligations under an Order or these Trading Terms.

    14.2 Penalty interest

    (a) The Customer must pay to HOA, interest at the rate which is 2% above the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic) on any overdue amounts, with such interest calculated from the due date for payment until the date that payment is received in full as clear funds by HOA.
    (b) Any payment received by HOA from the Customer must be applied, in order, to costs and Losses, then to the interest on the oldest overdue Tax Invoice, and then to the costs, Losses, interest and amount outstanding on subsequent Tax Invoices, until all overdue amounts are paid for in full.

    14.3 Rights of HOA and withdrawal of credit

    (a) In addition to any of its other rights, where the Customer is in default, HOA may:

    (i) Terminate any credit accommodation granted to the Customer;
    (ii) Refuse to supply any further Goods to a Customer (whether under the same or a separate Order) until that Customer pays an overdue Tax Invoice in full (without being liable for any resulting delay in the delivery of Goods); and or
    (iii) Continue to supply the Customer on a cash on delivery basis.
    (b) If HOA notifies the Customer that credit has been withdrawn, all subsequent Orders submitted by that same Customer must be paid for in full at the time of placing the Order.
    (c) The Customer must pay to HOA within seven (7) days of a request, HOA's reasonable expenses, disbursements, costs and Losses in respect of:
    (i) Any breach by the Customer of these Trading Terms; or
    (ii) The exercise or attempted exercise by HOA of any right or remedy against the Customer pursuant to these Trading Terms or the Order in place.

    15. Security and PPSR

    15.1 The Customer agrees and acknowledges that until title in the Goods passes to the Customer under clause 10.2:

    (a) HOA shall have the right to register a secured interest in those Goods and any proceeds described in clause 4(b) on the PPSR to secure any amount owing by the Customer to HOA whatsoever; and
    (b) The Customer must do everything reasonably necessary to assist HOA creating such registered secured interest on the PPSR.

    15.2 Both parties agree and acknowledge that nothing contained within these Trading Terms shall create any right in either the Customer or its controller to charge or hold as security any of Goods to which title has not passed to under 10.2.    

    16. Guarantee

    Each person that is an owner or director of the Customer, jointly and severally:

    16.1 Guarantees to HOA the prompt payment of all amounts due to HOA from time to time;

    16.2 Guarantees that the Customer will comply with these Trading Terms;

    16.3 Promises to comply with these Trading Terms personally and all Obligations of the Customer under the Trading Terms.

    17. Privacy

    17.1 Collection of personal information

    (a) Subject to clause (b), any personal or confidential information obtained or collected by HOA shall be retained, held and used only in accordance with HOA's privacy policy and the provisions of the Privacy Act 1988 (Cth).
    (b)The Customer authorises and consents to the release to HOA of any information sought by HOA from any bank, financial institution or credit reporting agency at any time.

    17.2 Change of details

    The Customer must notify HOA of any change to its contact details (as set out in the Order) or in its accounts payable contact at least 14 days prior to any of those changes taking place.

    18. Miscellaneous

    18.1 Notices

    Any notice or other communication to or by a party under these Trading Terms:

    (a) may be given by personal service, or post;
    (b) must be in writing, legible and in English addressed to the address of each party contained in the Order, or to any other address last notified by the party to the sender by notice given in accordance with this clause;
    (c) is deemed to be given by the sender and received by the addressee:
    (i) if delivered in person, when delivered to the addressee; or
    (ii) if posted, two (2) Business Days after posting to the addressee whether delivered or not;

    but if the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee's time), it is deemed to have been received at 9.00am on the next Business Day.

    18.2 Assignment

    The Customer must not assign the Order or any rights benefits or Obligations under these Trading Terms without the prior written consent of HOA. A purported assignment without written consent will be deemed to be void and to convey no rights.

    18.3 Costs

    Each party must pay its own costs of negotiating, preparing and submitting each Order.

    18.4 No Exclusion of rights

    The rights, powers or remedies provided in these Trading Terms are cumulative with and not exclusive of any rights, powers or remedies provided independently of these Trading Terms.

    18.5 Partial exercise of rights

    No single or partial exercise by any party of any right, power or remedy under these Trading Terms shall preclude any other or further exercise of that or any other right, power or remedy.

    18.6 Survival

    Notwithstanding any other provision in these Trading Terms, any indemnity, warranty or any Obligation of confidence under each Order is independent and survives completion or cancellation of the Order.

    18.7 Entire agreement

    The Order and Trading Terms contain the entire understanding between the parties in relation to each separate request for the supply of Goods and supersedes all prior agreements and communications between the parties.

    18.8 Severability

    Any provision of these Trading Terms which is invalid in any jurisdiction must, in relation to that jurisdiction:

    (a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
    (b) be severed from these Trading Terms in any other case,

    without invalidating or affecting the remaining provisions of these Trading Terms or the validity of that provision in any other jurisdiction.

    18.9 Relationship

    An Order does not create a relationship of employment, agency or partnership between the parties.

    18.10 No waiver

    (a) A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by these Trading Terms does not operate as a waiver of the power or right.
    (b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Trading Terms.

    (c) A waiver of a breach does not operate as a waiver of any other breach.

    18.11 Governing law and jurisdiction

    (a) These Trading Terms are governed by and must be construed in accordance with the laws in force in Victoria.
    (b) The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Trading Terms, the Order, its performance or subject matter.