General Conditions of Sale

IMPORTANT NOTICE: Please review this General Conditions of Sale to inform yourself of the terms and conditions which apply. If you do not agree with them, do not trade with Scholastic Australia Pty Ltd, whether by using the Web site on which it appears or off line. By accessing, using or downloading material from the Scholastic Australia Pty Ltd Web site on which it appears, you agree to follow and be bound by these General Conditions of Sale which constitutes a legal contract.

1. STAFF TRAINING

Through training and the imposition of specific responsibilities, the Buyer must ensure that its officers and employees familiarise themselves fully with these General Conditions.

2. VARIATION

These General Conditions of Sale may change without notice, so do check them from time to time. Any variation of these General Conditions must be in writing.

3. COMPOSITION & INCONSISTENCY

3.1 These General Conditions prevail over all conditions of the Buyer's purchase order, or any similar document of the Buyer, to the extent of any inconsistency

3.2 For each order of Goods a separate contract arises between the Seller and the Buyer under these General Conditions. Each such contract is comprised by the provisions of the relevant Goods order process data or documents, and these General Conditions.

3.3 If there is an inconsistency at any time between such provisions and a clause of these General Conditions, then the clause prevails to the extent of that inconsistency, and the parties must take all necessary steps to interpret the provisions in a manner which is not inconsistent with the clause of these General Conditions.

3.4 If the Buyer breaches any such contract, the Seller has rights, as specified in these General Conditions, to impose certain sanctions against the Buyer in respect of all contracts between the Buyer and the Seller. For example, if the Buyer fails to pay accounts for Goods, the Seller may place the Buyer on stop credit until payment.

4. ORDERS

4.1 Supply of Orders

(a) Goods ordered are supplied subject to availability.
(b) The Seller is not liable for any loss or damage resulting from delays or a failure to supply Goods. The Seller has the right to review orders based on availability.

4.2 Back Orders

Goods which are treated as out of stock but which are expected to be available at a future date will be marked as a "back order" and supplied at the time of availability, unless the Buyer otherwise instructs the Seller in writing.

4.3 Online Order Processing

To the extent that it is feasible, online (ie electronic) and off line orders are to be treated by the Seller and the Buyer using the same methodology. Online orders will be treated as valid by the use of a valid order number, an order confirmation signed by the Buyer, or acceptance of the Goods by the Buyer, whichever occurs first.

4.4 Small Order Surcharge (Books)

(a) If the total net invoice value for an order is less than A$150 including GST, a small order handling charge applies.
(b) Backlist orders may be held and dispatched once the relevant small order threshold is exceeded.

4.5 Small Order Surcharge (Software)

If the total net invoice value for an order is less than A$500 including GST, a small order handling charge applies.

4.6 Order Cancellation

The Buyer may cancel an order only on the basis that the Seller is indemnified by the Buyer against all consequential loss. This condition does not apply if the Seller is unable to fill the order.

5. PRICE

The Seller will specify each Goods price at an Australian recommended retail price (ie RRP), inclusive of goods and services tax (ie GST). Goods prices are subject to change without notification.

6. DISCOUNT

The Seller's invoice will specify the recommended retail price, less an agreed discount. Certain Goods may be invoiced on a basis of net price as may be negotiated.

7. FREIGHT AND DELIVERY

7.1 Delivery Schedule

(a) The Seller will exercise its best endeavours to deliver orders on a timely basis but the Seller is not liable for loss or damage resulting from delays or failure to deliver Goods.
(b) The times and dates given by the Seller for delivery are not an essential term or condition of sale and late delivery caused in any way will not constitute a breach of these General Conditions.

7.2 Freight

(a) The Seller will arrange and pay for standard deliveries to the Buyer, unless otherwise advised or requested by the Buyer. However, if the Buyer requests expedited delivery (eg airfreight overnight or overnight express) the additional cost will be charged to the Buyer.
(b) The Seller may vary or cease paying for deliveries if the Buyer is found to be in breach of these General Conditions or other arrangements with the Seller.

7.3 Short or Over Supply

A claim for a shortage or over supply must be received by the Seller within seven (7) days after delivery of the relevant Goods and must specify the relevant invoice number and the details of the adjustment. The Seller is not obliged to process a claim received after this seven (7) days period.

7.4 Damaged or Defective Goods

The Seller will replace (subject to availability and freight free) or, alternatively, credit the Buyer for damaged or defective Goods returned to the Seller within seven (7) days after delivery.

7.5 Delivered Goods Refused

The Seller has the right to recover its costs (including additional freight charges, surcharges, and lost profit) from the Buyer for orders made by the Buyer which are delivered by the Seller but for which delivery or payment is refused, avoided or hindered by the Buyer or its representatives.

8. INVOICES

8.1 Price

Goods will be invoiced at recommended retail prices (RRP), inclusive of goods and services tax (GST), less the Buyer's discount or, alternatively, at a net price.

8.2 Discount

The Seller will determine the Buyer's discount and will notify the Buyer of the discount. The Seller may cancel, vary or suspend the discount from time to time.

8.3 Currency

All money payable by the Buyer to the Seller is payable as and in Australian dollars, except as may be agreed otherwise in writing.

9. CREDIT

9.1 Credit Limit

(a) The Seller will determine a credit limit for the Buyer. The Seller will give written notice to the Buyer of the credit limit set for the Buyer after the Seller processes the Buyer's relevant credit application.
(b) The Seller may vary the Buyer's credit limit, terminate a credit arrangement or refuse to supply Goods to the Buyer, without giving prior notice. The Seller is not liable for any damage or loss suffered from any variation, suspension or termination of the Buyer's credit limit.

9.2 Guarantees, Indemnity & Security

A Buyer which is a private company or a partnership must procure personal and directors guarantees, indemnity and security over money due and payable or which may become due and payable by the Buyer to the Seller.

9.3 Change in Business Structure or Ownership

The Buyer must give the Seller seven (7) days' written notice regarding any:
(a) change in the Buyer's business structure or corporate structure;
(b) change in ownership of the Buyer's business; or
(c) sale of part or all of the Buyer's business.

10. PAYMENT

10.1 Trading Terms

(a) The Seller will give written notice to the Buyer of the trading terms, ie the payment period applicable to the Buyer. By the due date, the Buyer must pay in full for all Goods delivered on credit by the Seller to the Buyer.
(b) Payment by credit card facilities of credit accounts with the Seller will incur an additional two per cent (2%) charge on the total amount payable.
(c) The Seller may charge monthly interest of one and a half per cent (1.5%), calculated on a daily basis, for all money overdue, from the due date to the date of payment, inclusive until such time as the Buyer's account is brought within the trading terms.

10.2 Stop Credit

(a) If the Seller does not receive payment by the due date, the Seller may without notice place the Buyer on stop credit until payment, including any applicable interest, is received in full.
(b) If on a subsequent occasion a Buyer is placed on stop credit, the Seller may without notice refuse to supply the Buyer on credit terms.

10.3 Unauthorised Deduction of Credit Claims

The Buyer has no right to deduct the Buyer's returns claims that are not subject to an issued credit note. Such a deduction will be in breach of these General Conditions and the Seller may refuse further supply until such time that the Buyer pays in full all outstanding money.

10.4 Disputed Amounts

(a) The Buyer must notify the Seller of any disputed invoice within fourteen (14) days of the relevant statement for the Goods. If there is an amount in dispute, the Buyer must still pay all undisputed amounts when they fall due for payment.
(b) Any costs incurred by the Seller in demanding, collecting and enforcing judgements for money due and payable (including without limitation, the fees of mercantile agents or lawyers appointed by the Seller) must be paid in full by the Buyer.
(c) If the Buyer does not pay a statement in full or fails to pay the sum specified in the Buyer's remittance advice, then the Buyer is obliged to take all necessary action at its expense to reconcile payments due to the Seller.

11. TITLE AND RISK

11.1 Title to Goods

(a) Title to the Goods delivered to the Buyer remains with the Seller until:

1. the Seller has been paid in full; and
2. payment is made by cheque or other means, and the proceeds of the payment have been settled to the account of the Seller.

(b) If the Seller does not receive payment for the Goods when payment falls due, the Buyer must give the Seller access to the Buyer's premises to repossess the Goods.
(c) The Buyer must keep accurate and complete records of any Goods in its possession or control title for which is retained by the Buyer. The Buyer must on three (3) days' notice permit the Seller, its employees or agents to take all necessary steps in the Seller's opinion to examine, audit and take copies of such records. If the Seller requires the Buyer to supply documents to a place nominated by the Seller for the purpose of conducting such examination, auditing or copying then the Buyer must fully comply with the Seller's requirements in that regard.
(d) Until title to the Goods passes to the Buyer, the Buyer only possesses the Goods as bailee and must keep the Goods free from any encumbrance.
(e) These General Conditions apply in respect of Goods delivered by the Seller to the Buyer which form part of the stock which is the subject of a sale of part or all of the Buyer's business to another party.

11.2 Risk in Goods

(a) The Goods are at the Buyer's risk from the time of physical delivery of the Goods to the Buyer (or such person or premises as the Buyer directs) by whatever means adopted, or alternatively, from the time of the passing of title in the Goods to the Buyer, whichever occurs first.
(b) Any loss or damage to the Goods which occurs after the physical delivery of the Goods shall be treated as a sale of the Goods to the Buyer, pursuant to which the Buyer must make the payment due to the Vendor for the Goods.

12. RETURNS POLICY

12.1 General

(a) Goods may be returned for credit only. Returns for credit are accepted only by prior arrangement pursuant to completion of a returns authorisation form and use of returns labels on cartons, details of which are in each case specified below in this clause.
(b) Returns must comply with the provisions of this clause. New release books returned for credit, damaged or defective Goods returned for credit, and Goods returned for any other reason for credit, must comply with the provisions specified below in this clause. Returns which do not comply will not be processed for credit.
(c) The Seller may from time to time vary these General Conditions regarding returns by written notice to the Buyer. If the Seller does not vary these General Conditions, the returns policy specified in this clause will apply.
(d) The Seller may vary or revoke a particular privilege if, in the opinion of Seller, the Buyer is abusing the privilege for financial or other benefit.

12.2 Mint Condition Criteria

Damaged Goods, and Goods which fail to meet the mint condition criteria specified below in this clause, will not be processed for credit, and will be returned to the Buyer (except as otherwise agreed in writing by the Seller).

To be in mint condition, a book to be returned for credit must have:

• no stickers are to remain on the book either inside and/or outside;
• no sticker damage is to be evident on the book either inside and/or outside;
• no foodstuffs on the book;
• no dirty marks that damage the appearance of the book;
• no rips, tears, creases to any part of the book including teeth marks;
• no hand written prices on books;
• no author signatures;
• no texta marks on books denoting a free reading copy;
• no bent corners to the book;
• no bent spines; · no yellowed or faded paper;
• no writing on or within the book; and
• no portions of the book missing.

To be in mint condition, software to be returned for credit must have:

• no stickers or security tags on the software package either inside and/or outside;
• no sticker or security tag damage evident on the software package either inside and/or outside;
• no foodstuffs on the software;
• no dirty marks that damage the appearance of the software;
• no texta marks on the software package; and
• no portion of the software missing.

12.3 New Releases (Books)

New releases of books are supplied on a sale or return basis between 3 - 12 months. Books must be in store a minimum of three (3) months from date of release and become backlist, and are therefore treated as a firm sale, on expiry of the 12th month from the original release date.

12.4 Backlists (Books)

(a) Books sold as a backlist title are supplied on a firm sale basis only.
(b) Books become a backlist, and are therefore treated as a firm sale, on expiry of the 12th month from the original release date (eg a title published in November 2005 will become a backlist title in November 2006). No credit will be issued after expiry of the 12th month from the original release date.

12.5 Firm Sale (Software)

Software Goods held by the Buyer for longer than one hundred and fifty (150) days from the date of invoice will be treated as a firm sale and cannot be returned for credit.

12.6 Goods Damaged on Arrival

Goods will be credited if they are inspected and noted by the Buyer as being damaged on arrival as well as accepted as such by an authorised representative of the Seller within seven (7) days of receipt. All damaged Goods to be returned must be accompanied by a Seller's returns authorisation form.

12.7 Returns Authorisation

Goods requested for return to the Seller will only be accepted using a returns authorisation form issued by the Seller. No copies, duplications or mock ups of forms will be accepted under any circumstances. A return which uses a non-approved form will not be processed for credit.

12.8 Compulsory Packaging Instructions for Authorised Returns

• If the Seller approves returns under a returns authorisation, the Buyer must appropriately package the Goods to avoid damage in storage or transit.
• When a carton is prepared and packed with returns it must bear the Seller's returns authorisation label. No copies, duplications or mock ups of labels will be accepted under any circumstances.
• No carton when packed is to exceed sixteen (16) kilograms in weight.
• Like titles, where applicable, must be packed into the same carton.
• The use of carton fill material is acceptable and encouraged to help avoid damage to Goods in transit.
• If there are multiple cartons in an authorised return, the cartons must be clearly marked identifying the carton numbers (eg 1of 3, 2 of 3, 3 of 3).

12.9 Delivery of Authorised Returns

(a) Deliveries of authorised returns are at the Buyer's expense and at the Buyer's risk. The Seller has no obligation to issue a credit for Goods lost or damaged in transit.

(b) The Seller will only accept returns if they are received into the Seller's store within one (1) calendar month after the date of the returns authorisation. A delivery arriving after this time will not be processed for credit and will be returned to the Buyer.

12.10 Credit for Authorised Returns

(a) In reviewing returns requested for credit, the Seller has the right to reject all or part of a return if in the Seller's opinion or its representative the Goods do not meet the returns conditions specified in these General Conditions.
(b) Consistent with the conditions of this clause, Goods returned for credit will only be processed if they:

• are authorised returns pursuant to an approved returns authorisation form;
• are returned bearing approved returns authorisation labels on all cartons;
• are returned within the required timeframe (ie within one (1) calendar month after the date of the returns authorisation); and
• are returned undamaged, and in conformity with the mint condition criteria and in conformity with the compulsory packaging instructions for authorised returns.

(c) If the Seller's representative rejects an authorised return for credit, the Seller may give the Buyer notice of the reason but has no obligation to do so.

13. GENERAL

13.1 Interpretation

In this Agreement, unless the context otherwise requires:

(a) a reference to any party to this Agreement includes its heirs, administrators, successors, substitutes (including persons taking by novation), and assigns;
(b) words in the singular number include the plural and vice versa;
(c) headings are for convenience only and have no affect on interpretation;
(d) a reference to "including" and like terms means "including but not limited to";
(e) a reference to any period of months is to calendar months;
(f) a right includes a benefit, remedy, discretion, authority or power;
(g) an obligation includes a representation, responsibility, duty, undertaking, liability, prohibition, covenant, warranty or indemnity;
(h) a failure to comply, observe or perform an obligation constitutes a breach of an obligation;
(i) a reference to a thing (including any amount) is a reference to the whole and each part of it and a reference to a group of things or persons is a reference to all of them collectively and to any one or more of them; and
(j) words importing any gender include all genders.

13.2 Force Majeure

Despite any provision in these General Conditions to the contrary, no default, delay, inability or failure to perform on the part of the Seller will constitute a breach of these General Conditions if such default, delay, inability or failure is due to a cause, fact, circumstance, matter, or thing beyond the reasonable control of the Seller. The Seller will be relieved of the relevant obligation to perform under these General Conditions to the extent and for the period that it is so unable to perform.

13.3 Survival

All obligations, undertakings, liabilities, warranties and indemnities which expressly or by their nature survive the termination, completion or expiry of these General Conditions, continue in full force and do not merge despite that termination, completion or expiry.

13.4 Joint and Separate

If the Buyer comprises more than one person then the Buyer's rights are for the benefit of those persons jointly and separately and the Buyer's obligations and liability is to be joint and separate.

13.5 Severability

If a provision or part of it of these General Conditions is held invalid, void, unenforceable or illegal for any reason, it is to be read down if possible so as to be valid, enforceable and legal, but if it cannot be read down it is to be taken to be severed from these General Conditions and these General Conditions will otherwise remain in full force.

13.6 Waiver

No provision of these General Conditions is to be taken to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.

13.7 Governing Law and Jurisdiction

These General Conditions and the contract to which they relate must both be interpreted and governed by the law of the State of New South Wales and the Commonwealth of Australia as applicable. If a dispute arises in relation to these General Conditions, or the contract to which they relate, the dispute must be subject to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

Scholastic Australia Pty Ltd
PO Box 579
Gosford NSW 2250
Tel (02) 4328 3555
Fax (02) 4323 3827
Email: customer_service@scholastic.com.au

Last revised: 11 November 2005.
Copyright © 2005 Scholastic Pty Ltd All rights reserved.