OUR TERMS

Terms and Conditions of supply of goods and services by Taka Holdings Pty Ltd ABN 99612596930 trading as Fine Star Diamonds Sydney

1. DEFINITIONS IN THESE TERMS:

“Seller” means Taka Holdings PTY Ltd. T/A Fine Star Diamonds, Sydney ABN 99612596930 of Suite 12, Level 4, Dymocks Building, 428 George Street, Sydney NSW 2000 and includes its successors and assigns.

“Buyer” means any person, firm, corporation or entity, which purchases, orders or otherwise takes possession of Goods and Services from the seller.

“Approval Period” means the period referred to in clause 20.2

“Goods” means any and all the items described in any invoice, approval note or other document issued by the seller and supplied or to be supplied to the Buyer

“Goods on Approval” means any goods supplied to the Buyer by the seller in accordance with clause 20.

“Goods and Services Tax” means the tax created by a New Tax System (Goods and Services Tax) Act 1999 and its associated legislation (GST Act).

“Insolvent” means:

  • In the case of an individual, an application is made to a court for a sequestration order against that person or the person commits an act of bankruptcy or takes any steps to obtain protection or is granted protection from that persons creditors under any applicable legislation; and
  • In either case a person or company, entering into a composition, assignment or arrangement with creditors;
  • In the case of a company, an application is made to the court for an order or an order is made that the company be wound up, an application is made to a court for an order appointing a provisional liquidator or receiver of the company, a meeting is conveyed or a resolution is passed to appoint an administrator of the company, the company calls a meeting for the purpose of appointing a liquidator or any of the events described in Sections 459C (2) (a) to (I) or 585 of the Corporations Act 2001 occurs in relation to the company

“Order” means the binding agreement resulting from the acceptance by the Seller of a request (in writing or otherwise) by the Buyer to be supplied with Goods and shall be deemed to include the provisions of these Terms, the information on the face of any invoice, approval note or other documentation issued by the seller relating to the supply or setting and any variations thereof agreed to in writing by the parties.

“Sealed Stones” means Stones supplied by the Seller in a container sealed by the laboratory from which the Stones were sourced and accompanied by a Certificate of Valuation from that laboratory.

“Stones” means and includes any precious and semi-precious gemstones supplied by the Seller either unset or set in the finished goods.

“Terms” means these Terms and Conditions for the supply of the Goods by the Seller or such other terms and conditions as may be notified in writing by the Seller to the Buyer from time to time. The seller will try to provide reasonable notice of any changes.

2. CONTRACT:

An Order contains the whole understanding of the parties relating to the subject matters of the Terms and the Terms cannot be altered or varied without written agreement of the Seller. The Terms supersede all previous Terms of the Seller.

3. ACCEPTANCE:

The Buyer shall accept the Terms for the purposes of an order upon a copy of the Terms being sent or delivered by/or on behalf of the Seller to the Buyer and the Buyer subsequently placing an Order with the Seller for the Goods.

4. INCONSISTENCY:

Any condition contained in any document (including any order form) created or issued by the Buyer (whether in response to the Terms or otherwise) does not bind the Seller and the Buyer acknowledges that in the absence of a variation in writing thereof agreed to by the Seller, the Buyer will be bounded by the terms.

5. PRICE AND TERMS OF PAYMENT:
  • The Buyer shall pay the price stated in any invoice of the Seller and payment of the invoice shall be made by a method of payment approved by the Seller without deduction or set off.
  • All payments due under an order are to be made in Australian currency free of exchange unless specifically agreed to with the Seller and should be made to the Seller’s office in Australia stated on the invoice relating to such order or to such other place as may be notified by the Seller to the Buyer in writing.
  • The Seller shall invoice the Buyer upon delivery of the Goods. Unless notified on the face of the invoice or otherwise in writing by the Seller payment of the price stated on the invoice shall be made by the Buyer on or before the last business day of the month following the month In which the invoice is rendered (“due date"). In the event of any discrepancy between the Terms and any terms and conditions of the Seller appearing on the face of the invoice, the latter shall prevail. Time shall be of the essence in relation to all obligations of the Buyer to make payment of the Goods.
  • If the invoice is not paid by the due date:
    • The Seller is entitled to suspend all further deliveries of the Goods to the Buyer until payment is made in full on all outstanding invoices; and
    • The price stated on the invoice shall bear interest from the due date until the price is paid in full. Interest shall be paid at a rate 6% higher than the RBA Cash Target Rate for the time being and computed upon the price owing or any part of the price remaining overdue and unpaid and upon any judgment recovered in respect thereof;
    • The Buyer will pay or reimburse to the Seller any costs or expenses (including but not limited to legal costs on a full solicitor/client indemnity basis) which the Seller incurs in collecting or attempting to collect payment from their Buyer.
  • The goods may be returned for credit upon receipt of written consent from the Seller. No refunds will be made. The Goods may only be returned for credit or exchange within 7 days of the date of invoice. Any custom made, custom cut or custom acquired goods are non- refundable.
  • The Seller shall not under any circumstances be liable for any claim, loss or damage sustained or incurred by the Buyer or any other party arising in any way as a result of the unavailability of the Goods or any delay in delivery of the Goods or any part thereof or any failure to deliver the Goods or part thereof.
  • Subject to Clause 5.4, the Seller reserves the right at any time tosuspend credit or to change credit terms provided to the Buyer when in the Seller’s sole opinion the financial condition of the Buyer so warrants. In any such case in addition to the other remedies provided for in these Terms or at law, cash payments or satisfactory security from the Buyer may be required by the Seller before dispatch of the Goods, or the due date for payment by the Buyer under any Order with the Seller may be accelerated by the Seller.
  • The Buyer agrees that, subject to the terms of the Privacy Act 1988, the Seller may in its absolute discretion disclose the status of the Buyers account to any person or corporation.
6. DEALINGS WITH GOODS:
  • Until it has paid for them in full, the Seller must not do any of the following in relation to any of the Goods except where they are sold as contemplated by these Terms:
    • create or allow any interest in, or dispose or part with possession of, the Goods;
    • Allow the Goods to be taken outside Australia;
    • Allow the Goods to become an accession to or commingled with any other property.
  • The Buyer must notify the Seller if anything mentioned in clause 6.1 occurs immediately upon becoming aware of it.
  • If the Buyer sells or disposes of any Goods before it has paid for them in full, the Seller will hold the proceeds of sale or disposal on trust for the Buyer to secure payment of the amount the Buyer owes the Seller for the Goods. The Seller must pay all monetary proceeds, up to the amount owed, into a separate account until they are paid over to the Buyer, and must not mix them with any other amount or use them to pay a debt.
  • If the Buyer does not pay the Seller the amount the Buyer owes the Seller for the Goods when due, the Buyer may re-take possession of the Goods. The Buyer may enter any land or premises for the purpose of retaking possession. If the Buyer retakes possession of any Goods, it may deal with them as it thinks fit.
  • The Buyer will be deemed to have accepted the terms of this clause 6 by placing an order for any Goods, taking or accepting delivery of any Goods, or using any Goods whether or not the Buyer acknowledges or signs these Terms.
7. PERSONAL PROPERTY SECURITIES ACT:
  • In clause this clause 7:
    • i. PPSA means the Personal Property Securities Act 2009 (Cth); words and phrases that have defined meanings in the PPSA have the same meaning
    • As in the PPSA unless the context indicates otherwise. 7.2. If any Goods become an accession to or other property or become part of a product or mass, then:
    • the Seller’s security interest continues in the other property, product or mass; and
    • References to the Goods in clause 1 and this clause include the other property, product or mass.
  • The Buyer consents to the Seller perfecting any security interest that it considers this document provides for by registration under the PPSA. The Buyer agrees to do anything the Seller reasonably asks to ensure that the security interest:
    • is enforceable, perfected and otherwise effective; and
    • has priority over all other security interests.
  • To the extent the law permits, the Buyer waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA. However, this does not prevent the Seller from giving a notice under the PPSA.
  • The Buyer agrees not to exercise its rights to make any request of the Seller under section 275 of the PPSA. However this does not limit the Buyer’s rights to request information other than under section 275
  • To the extent the law permits, the Seller need not comply with, and the Buyer may not exercise rights under, any provisions of Chapter 4 of the PPSA that may be contracted out of.
  • If the Seller exercises a right, power or remedy in connection with this document or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless the Seller states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
  • The Buyer must notify the Seller at least 14 days before it does any of the following:
    • changes its name;
    • changes its place of registration or incorporation;
    • changes or applies for an ACN, ABN, ARBN or ARSN under which an interest in any of the Goods is or will be held.

The Buyer must notify the Seller if anything mentioned in sub-clauses i-iii occurs immediately upon becoming aware of it.

8. GOODS AND SERVICES TAX ("GST"):

Unless otherwise specifically stated, all prices and amounts listed are exclusive of GST. If GST is payable by the Seller on the supply of goods and services to the Buyer, the Buyer will pay the Seller the price or other amount invoiced plus GST. The Seller agrees to provide to the Buyer a tax invoice as required by the GST Act for any amounts to be paid by the Buyer for a supply made by the Seller to which the GST Act relates.

9. CREDIT INFORMATION:

The Buyer irrevocably authorises the Seller and its servant and agent to make such enquiries from time to time as the Seller may deem necessary to obtain information and/or to investigate the credit worthiness of the Buyer including enquiries with persons nominated as trade references, bankers of the Buyer, other credit providers, any credit reporting agency and land titles offices. ASIC, ITSA and/or any similar body and/or related information service (“Sources”) including personal credit and Buyer credit information and any property, business and/or solvency information. The Buyer by this clause irrevocably authorises the Sources to disclose anything about the Buyer which is in the Sources’ possession and the Buyer agrees that the Seller may disclose any information it has about the Buyer to any interested person (subject only to any obligations the Seller may have under the Privacy Act 1988).

10. SUPPLY:
  • The Goods supplied to the Buyer are at the Buyer’s risk from the time the Goods are loaded for dispatch to the Buyer or are elected by the Buyer (whichever is earlier).
  • The Buyer accepts all risk or loss or damage to the goods regardless of the way in which such loss or damage is caused and whether such loss or damage is caused and whether or not it was caused by the Seller or Buyer.
  • The Seller will make all reasonable efforts to supply the Goods to the Buyer by the date requested by the Buyer. The Seller does not accept any liability if it does not make delivery by that date.
  • The Seller reserves the right upon notice to the Buyer at any time to withhold deliveries if the Seller in its sole discretion considers that the financial condition of the Buyer so warrants and that such action is advisable to protect the Sellers interests.
  • Whether or not risk has passed to the Buyer, the Seller shall to the full extent permitted by law be under no liability In respect of any damage caused to, or any deterioration of the Goods during the course of transit.
11. PACKAGING AND FREIGHT:

Packaging and Freight or a different form of Freight will be effected in accordance with the Sellers standard practice and the cost of packaging and freight is included in the price. If the Buyer requests other packaging the Buyer will bear the costs of the request.

12. TIME:
  • The obligations of the Seller shall be suspended during the time and to the extent that the Seller is prevented from any delayed in complying with those obligations by Force Majeure
  • Force Majeure means circumstances beyond the control of the Seller which occur without default or negligence of the Seller, and include inevitable accident storm, flood, fire, earthquake, explosion, peril of navigation, hostility war, insurrection, strike, lockout or other labour difficulty, executive or administrative order or act either general or of particular application of any government whether de jure or de facto or any other official purporting to act under the authority of that government prohibition or restriction by domestic or foreign laws regulations or policies, quarantine or customs restriction, breakdown or damage to our confiscation of property.
13. LIMITATION OF LIABILITY:
  • To the extent permitted by law all statutory and other implied conditions and warranties relating to the supply of Goods by the Seller are negatived, and the liability of the Seller pursuant to any provision of legislation of the Commonwealth and any State or Territory or pursuant to any other potential liability whether arising from negligence or not, including consequential loss is limited at the option of the Seller to the replacement of the Goods or supply of equivalent goods, the repair of the Goods, the payment of the cost of replacing the Goods or acquiring equivalent goods or the payment of the cost having the Goods repaired.
  • delivery, re-supply, retaking of possession, installation or use of Goods or any other claim whatsoever arising directly or indirectly out of or in any way attributable to the performance or non-performance of an Order.
  • The Buyer agrees to indemnity the Seller, its employees and agents against all actions, proceedings and claims (including consequential lass and loss of profits) whatsoever brought against the Seller, its servants, agents or contractors In relation to any injury, loss of life or damage to any property or financial or other consequential loss for and in respect of any loss injury expense or damage howsoever caused whether by the negligence of the Seller or not arising directly or indirectly out of or in any way attributable to non-performance of an Order. This indemnity does not derogate in any way from any other indemnity provided under an order.
  • Any advice, recommendation, information or representation given or provided by the Seller as to the quality, performance of the Goods and their suitability for a particular purpose or otherwise in relation to the Goods shall be accepted by the Buyer at its own risk and without liability or responsibility on the part of the Seller.
14. TAXES:

Without limitation to Clause 8, any sales tax, excise or other tax, impost or duty shall be payable by the Buyer and the Buyer shall not deduct any tax, impost or duty from the price payable to the Seller. Taxes, imposts and duties shall, unless stated otherwise in the relevant invoice be added to invoices as separate charges.

15. WITHDRAWAL OF QUOTATION:

Unless withdrawn by the Seller, any quotation made by the Seller is open for acceptance by the Buyer for 4 days unless otherwise specified from the date the quotation or such other period as may be notified from time to time in writing by the Seller to the Buyer.

16. PROPERTY IN GOODS:
  • Notwithstanding any provisions in Clause 6 dealing with transfer of risk and notwithstanding that the Buyer has possession of the Goods, property in the Goods remains with the Seller and no legal or equitable interest on property in the Goods whatsoever shall pass to the Buyer or vest in the Buyer until the full amount due for the Goods and all other Goods supplied by the Seller to the Buyer (including any interest and collection costs payable to the Buyer) has been paid.
  • Until property passes pursuant to clause 16.1 the Buyer shall:
    • Refrain from selling or encumbering the Goods or missing the Goods with any Goods owned by the Buyer. If the Buyer on-sell the Goods before the Buyer makes full payment for the Goods, the Buyer is deemed to have sold the goods as agent for the seller;
    • Hold the goods as fiduciary agent for the Seller;
    • Store mark and keep appropriate records of the Goods so that they can at all times be identified as the property of the Seller, and shall place such identification on the Goods as may from time to time be requested by the Seller;
    • Permit the Seller at any time before property passes, including without limiting the generality thereof.
  • If the Buyer defaults in payment of any Order or the Buyer becomes insolvent to repossess and use or sell all or any of the Goods without prejudice to any other rights of the Seller and to so terminate the Buyers right to use the Goods and for that purpose the Buyer is deemed to have granted to the Seller an irrevocable right to enter with or without force at anytime the premises of the Buyer and any other premises where the Buyer holds or to which it has transferred the Goods.
17. DEFAULT AND TERMINATION:
  • Without prejudice to any of its rights, powers or remedies the Seller may terminate and Order immediately without any liability to the Buyer if:
    • Any payment is not made by the due date or within the time or times specified in the Order;
    • There is any other breach of the Order; or
    • The Buyer becomes insolvent.
  • Upon termination of the Order, the Seller shall be released from all liability under the Order and all Goods in the Sellers possession relating to the Order whether paid for by the Buyer or not shall be forfeited to the Seller absolutely.
18. SECURITY FOR PAYMENT:

The Buyer agrees upon request to charge in favour of the Seller the payment of all monies owing to the Seller in such form as the Seller requires:

  • By way of fixed charge over all of the Buyers book of accounts, financial records, goodwill documents of title and current and later acquired real property and intellectual property and
  • By way of a floating charge the whole of the Buyers other undertakings, property and assets
19. POWER OF ATTORNEY:

For the purpose of giving effect to the Buyers obligations under these Terms (in particular clause 18 of these Terms) the Buyer hereby irrevocably appoints the Managing Director of the Seller (or such other persons as the Seller directs) the Buyer’s attorney in all things.

20. GOODS ON APPROVAL:

Any Goods supplied to the Buyer by the Seller for the approval of the Buyer of the Buyer or for any other reason not at the time of the supply invoiced by the Seller are supplied on the following conditions:

  • Whilst the goods are on approval:
    • They remain the property of the Seller; and
    • The Buyer accepts liability for any loss or damage whatsoever to the goods whilst in the possession or power of the Buyer or if being returned pursuant to this clause 20 until they are received by the Seller; and
  • Goods supplied in accordance with this Clause 20 shall remain on approval for a maximum period of 14 fourteen days and if not returned to the Seller within that period, will be deemed to have been purchased by the Buyer in accordance with these Terms.
  • The Seller shall forward to the Buyer a Tax Invoice for any goods, the subject of clause 20.2 not returned within the Approval Period, which the Buyer shall pay in accordance with these Terms
  • Any goods supplied on approval which the Buyer intends to return to the Seller within the Approval period shall be returned in reasonably help opinion, considers appropriate to compensate the Seller for any damage caused to the Goods before they are received.
21. RETURN OF GOODS TO THE SELLER:
  • Return of Goods invoiced to the Buyer shall be accepted by the Seller on the following conditions only:
    • They are, in the reasonably held opinion of the Seller, faulty or of a quality inferior to that agreed to by the Buyer and the Seller when purchased, or
    • They are received by the Seller within 30 (thirty) days after the date of the invoice, failing which the Seller, and its sole discretion reserves the right to refuse to accept the return,
    • The Buyer shall pay the Seller on demand an amount equivalent to five per cent (5%) of the invoiced value of any goods returned pursuant to this clause 21.1 within thirty (30) days after the date of the invoice.
  • The Seller shall issue to the Buyer a Credit Note (in case of Invoiced Goods) or a return note (in case of goods on approval) which the Buyer acknowledges shall constitute the only evidence of return.
  • Sealed Stones:
    • A certificate of Valuation of Seated Stones is prima facie evidence of their value and quality and the Buyer shall not be at liberty to challenge that valuation;
    • The Seller will not be required to accept the return for any reason of any Sealed Stones supplied to the Buyer if the seal has been broken;
    • If the seal of any Sealed Stones is broken following dispatch to or collection by or on behalf of the Buyer on consignment the Seller has the right to forward a Tax Invoice for such Stones to the Buyer, which the Buyer agrees to pay in accordance with these Terms.
22. GRADING OF GOODS BY THE SELLER:

Where the Buyer agrees to accept the Supply of Goods graded in-house by the Seller:

  • The Seller shall exercise its best endeavors to accurately grade the goods;
  • The Buyer agrees to accept the accuracy of the grading carriedout by the Seller and;
  • The Seller shall not be held liable for any variation between its valuation and a valuation independently obtained by the Buyer, the Buyers Buyer or any other person PROVIDED THAT, in those circumstances the Seller may at its sole discretion accept return or exchange of Goods.
23. DISPUTES:

The Buyer agrees to pay into an interest bearing trust account in the joint names of the Seller and the Buyer any amount claimed by the Seller as a condition precedent to any dispute by the Buyer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution. This cause shall operate as a bar to any defence or claim by the Buyer until fully complied with.

24. NOTICE:

The Buyer agrees to pay into an interest bearing trust account in the joint names of the Seller and the Buyer any amount claimed by the Seller as a condition precedent to any dispute by the Buyer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution. This cause shall operate as a bar to any defence or claim by the Buyer until fully complied with.

  • A notice or other communication required or permitted to be given by a party to another shall be in writing and delivered personally or sent by prepaid post of facsimile to that party's address or facsimile number stated in an Order or as notified in writing to each party from time to time. Any such notice maybe signed by any director, manager or secretary of the Seller or by any other person authorised by the Seller.
  • A notice or other communication is deemed given if:
    • Personally delivered, upon delivery;
    • Mailed, upon the expiration of two business days after posting;
    • Sent by facsimile, on confirmation of successful dispatch by the sender’s machine or if after 1700 hours on a working day and 0900 hours on next working day.
25. GOVERNING LAW:

The Law of these Terms and any Order is the law of New South Wales and Australia. The parties submit themselves to the exclusive jurisdiction of the courts of any State of Territory in Australia as may be selected by the Seller in its sole discretion for proceedings in respect of any matter arising hereunder.

26. SEVERABILITY:

In the event that any of the provisions or conditions of the Terms cannot be given full force or effect by reason of statutory invalidity uncertainly or otherwise the relevant provision or condition, clause or Sub-clause as the case may be which cannot be given full force or effect shall be read down restrictively to maintain and uphold as far as is possible its effect but, if it is incapable of being so read down it shall be deemed to be severed from these Terms.