Terms & Conditions of Supply
Version Date: 21 September 2015
INTERPRETATION
1. In these Terms and Conditions:
Applicant means the person named in the form above as the applicant;
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Claim means any action, suit, claim, demand, cost, notice, proceeding, litigation, investigation, judgment, damage, loss (including consequential loss), liability or expense (including, without limitation, damage to property, plant or equipment) arising as a direct or indirect result of use of the Goods;
Credit Reporting Code means the registered CR Code within the meaning of the Privacy Act;
Delivery Time means the date and time (if a time is specified) of delivery of the Goods as notified by Pental to the Applicant;
Force Majeure Event means a strike, lock out or other industrial dispute, breakdown of systems or network access, flood, fire, earthquake, act of God, explosion or accident and any other matter, occurrence or event beyond the control of the relevant party and the effect of which could not have been prevented or mitigated by reasonable steps available to the relevant party;
Goods means any goods supplied or to be supplied by Pental to the Applicant and includes the packaging for those goods;
Intellectual Property Rights means all intellectual property rights (whether registered or unregistered) including any of the following:
(a) inventions, discoveries and novel designs;
(b) copyright (including future copyright) in literary works, artistic works, or other subject matter in which copyright subsists and may in the future subsist;
(c) confidential information, trade secrets and knowhow; or
(d) trade and service marks;
NZ PPSA means the Personal Property Securities Act 1999 (NZ);
Pental means any of Pental Products Pty Ltd ACN 103 213 467 or any of its related bodies corporate as defined in the Corporations Act 2001 (Cth);
PPS Act means Personal Property Securities Act 2009 (Cth);
Privacy Act means the Privacy Act 1988 (Cth); and
Terms and Conditions means the terms and conditions of supply set out in this document and includes any additional terms and conditions agreed in writing between the Applicant and Pental.
2. A reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them.
APPLICATION
3. Any order of Goods from the Applicant and the supply of Goods by Pental to the Applicant are made solely in accordance with these Terms and Conditions.
4. The Applicant acknowledges that it has read and understands these Terms and Conditions and is bound by these Terms and Conditions on the earlier of the date signed and the making of an order by the Applicant.
5. Any terms and conditions of supply that may be incorporated in any order or other document provided by the Applicant will, unless agreed in writing by Pental, have no legal effect.
PAYMENT
6. The Applicant is required to pay for the Goods within 30 days from the invoice date for the Goods supplied.
7. Should the Applicant default in payment of any amount due to Pental, then all amounts due to Pental become immediately due and payable and must be paid within 7 days from the date of demand. If the Applicant is in default in payments, the Applicant consents to Pental or its representatives entering the Applicant’s premises to effect recovery of any Goods in the possession of the Applicant and to use reasonable force to effect recovery without liability for trespass or damage.
8. Pental reserves the right to charge interest at its banker’s current bank overdraft rate on all overdue amounts from the date of invoice to the date of payment.
OUTSTANDING DEBTS
9. The Applicant agrees that all expenses, costs and disbursements incurred by Pental in recovering any outstanding amounts, including debt collection agency fees and solicitors’ costs must be paid by the Applicant.
10. Pental reserves the right to withhold the supply of Goods at any time without notice to the Applicant.
CREDIT LIMIT
11. In the event of this application being successful a fixed credit limit will be determined by Pental. Should the account balance exceed the Applicant’s credit limit, Pental reserves the right to withhold the supply of Goods without notice to the Applicant, until such time as the Applicant’s account balance is less than its credit limit.
PRIVACY
Note: in clauses 12 to 19 below, references to the Applicant includes the Applicant as defined in this application for commercial credit, each of its individual directors, partners, proprietors/individuals and the persons whose signature appears in this commercial credit application.
12. The purpose for which Pental collects the information provided by the Applicant in this application form, is to verify the identity of the Applicant, assess the Applicant’s application for commercial credit, and, if successful, to manage the Applicant’s commercial credit account. If the Applicant does not provide this information, Pental may be unable to provide the Applicant with commercial credit.
13. Pental may disclose personal information about the Applicant to a credit reporting body to obtain credit reporting information about the Applicant. Pental may also disclose credit information about the Applicant to a credit reporting body, which the credit reporting body may then include in its reports to other credit providers to assist them to assess the Applicant’s credit worthiness. This information may include:
(a) identification information, including (if the Applicant is an individual) name, sex, address, (including two previous addresses), date of birth, name of employer, driver’s licence number and/or any other personal information that is reasonably necessary in order to identify the Applicant;
(b) the fact that the Applicant has applied for credit and the amount;
(c) the fact that Pental is a current credit provider to the Applicant;
(d) payments which become overdue more than 60 days, and for which collection action has commenced;
(e) advice that payments are no longer overdue;
(f) cheques drawn by the Applicant which have been dishonoured more than once;
(g) in specified circumstances, that in the opinion of Pental, the Applicant has committed a serious credit infringement as defined in the Privacy Act;
(h) that credit provided to the Applicant by Pental has been paid or otherwise discharged; and
(i) any other information permitted to be disclosed to or collected by a credit reporting body under the Privacy Act
14. The Applicant consents and authorises Pental to obtain credit reporting information about the Applicant from a credit reporting body for a commercial credit related purpose, being either for assessing any application made by the Applicant for commercial credit from time to time, or for collecting payments that are overdue in relation to commercial credit owed by the Applicant
15. The Applicant consents and authorises Pental to collect from or disclose to other credit providers information relating to the Applicant’s credit worthiness:
(a) to assess an application by the Applicant for credit;
(b) to notify other credit providers of a default by the Applicant;
(c) to collect overdue payments;
(d) to exchange information with other credit providers as to the status of the Applicant’s credit arrangements where the Applicant is in default with other credit providers;
(e) to assess the Applicant’s credit worthiness; and
(f) to provide a reference to another credit provider or to receive a reference from another credit provider in relation to assessing an application by the Applicant for credit.
The Applicant understands that the information exchanged may include anything about the Applicant’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
16. The Applicant consents and authorises Pental to disclose to a person who is a guarantor, or is considering becoming a guarantor, credit related information about the Applicant for the purposes of the guarantor deciding whether to act as a guarantor; and/or providing the guarantor with information about the guarantee.
17. The Applicant acknowledges that Pental may also share information relating to the Applicant’s creditworthiness within the Pental Limited and its subsidiaries, debt collectors or legal firms in order to recover money which is due and payable by the Applicant.
18. Pental’s credit information policy, available at www.pental.com.au, contains further information about credit reporting and how Pental handles credit and related information, including:
(a) the credit reporting bodies to which Pental may disclose the Applicant’s credit information and in what circumstances;
(b) how the Applicant can seek access to and correct credit and credit eligibility information that Pental holds about the Applicant; and
(c) how the Applicant can make a complaint about a failure of Pental to comply with the relevant provisions of the Privacy Act or the Credit Reporting Code, and how Pental will deal with such a complaint.
19. Pental’s privacy policy, available at https://pental.com.au/terms/terms-conditions/, also contains information about how it generally handles other personal information it collects.
ORDERS AND USE OF GOODS
20. Any order submitted by the Applicant is not accepted until confirmed in writing by Pental. Each order confirmed by Pental will be deemed to incorporate these Terms and Conditions.
21. On acceptance, an order cannot be changed or cancelled without the prior written consent of Pental.
22. The Applicant is responsible for verifying the accuracy of any order or changed order submitted to Pental.
23. To the extent that there is any inconsistency or conflict between the terms and conditions set out in an order accepted by Pental and these Terms and Conditions the terms and conditions in the order will prevail.
24. If the Applicant’s trading address is in Australia, the Applicant must only sell the Goods to retail customers in Australia. If the Applicant’s trading address is in New Zealand, the Applicant must only sell the Goods to retail customers in New Zealand.
DELIVERY
25. Pental will use its reasonable endeavours to deliver the Goods to the Applicant at the Applicant’s nominated premises at the Delivery Time.
26. If no Delivery Time is specified, Pental will deliver the Goods within a reasonable period of accepting the order.
27. Pental is not liable to the Applicant for any failure to deliver the Goods on the Delivery Time other than for a breach of clause 25.
EXCUSABLE DELAYS
28. If either Pental or the Applicant (Precluded Party) is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under these Terms and Conditions and:
(a) the Precluded Party gives the other party immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event; and
(b) the Precluded Party uses all reasonable endeavours to:
(i) mitigate the effects of the Force Majeure Event on its obligations under these Terms and Conditions; and
(ii) perform its obligations under these Terms and Conditions despite the Force Majeure Event,
that obligation is suspended to the extent and for so long as it is affected by the Force Majeure Event.
29. If by reason of a Force Majeure Event, the delay or non performance of the Precluded Party’s obligations continue for more than 30 consecutive days the party who is not relying on the Force Majeure Event may terminate these Terms and Conditions and any orders accepted but not delivered due to the Force Majeure Event by written notice to the Precluded Party.
INDEMNITY
30. The Applicant agrees to indemnify and keep indemnified Pental and each of its related bodies corporate and their respective directors, employees, representatives, successors and assigns, from and against all liabilities, losses, damages, actions, claims, judgments, costs and expenses (including solicitors’ fees), resulting from or arising in connection with:
(a) any personal injury, disease or illness suffered by, or the death of, any person to the extent caused or contributed to by the act or omission of the Applicant or its employees, agents or sub-contractors;
(b) physical loss of or damage to property of Pental or any third party caused or contributed to by the act or omission of the Applicant or its employees, agents or sub-contractors;
(c) the Applicant’s or its employees, agents or contractors negligence or wilful misconduct; or
(d) any failure by the Applicant or its employees, agents or contractors to perform any of its obligations under these Terms and Conditions.
PRODUCT RECALLS
31. If either party becomes aware of any fact or circumstance that may require the withdrawal or recall of any Goods from the marketplace, that party must immediately notify the other party of that fact or circumstance.
32. Pental will be solely responsible for carrying out any withdrawal or recall of Products from the marketplace.
33. The Applicant must act in accordance with the reasonable instructions of Pental in relation to the withdrawal or recall of Products from the marketplace which may include, but is not limited to:
(a) withdrawing the Goods from offer for sale to the public, and where necessary, recalling any Goods already sold;
(b) complying with all legal requirements in relation to product recalls; and
(c) taking corrective action where appropriate, which may include disseminating relevant information to the public and government authorities.
34. Pental will be responsible for all costs incurred in relation to any withdrawal or recall of Goods, including the Applicant’s costs of complying with clause 33, except to the extent that the withdrawal or recall was caused by conduct (whether by act or omission and whether by the Applicant or otherwise) affecting the Goods after delivery of the Goods by Pental, in which case the Applicant must bear its own costs of complying with clause 33 and the Applicant must indemnify and keep indemnified Pental and each of its related bodies corporate from and against all liabilities, losses, damages, actions, claims, judgments, costs and expenses (including solicitors’ fees) incurred by it relating to that withdrawal or recall of Goods.
RISK AND TITLE OF GOODS
35. Until Pental has received full payment of all money owing by the Applicant to Pental in cleared funds:
(a) title to all Goods remains with the Pental;
(b) the Applicant holds the Goods as bailee and fiduciary for Pental, but may sell the Goods in the ordinary course of its business; and
(c) if the Applicant sells or otherwise disposes of the Goods, the proceeds of sale shall be held in trust by the Applicant for Pental.
36. The Applicant will not be entitled to pledge or in any way charge by way of security for any indebtedness of any of the Goods which remain the property of Pental.
37. From the date the Applicant obtains possession of the Goods until all Goods are paid for, the Applicant must:
(a) have in place commercially prudent insurance for the Goods for the full purchase price; and
(b) store the Goods securely and ensure the Goods are properly maintained in the condition in which they were delivered.
38. Risk in the Goods supplied by Pental passes to the Applicant on delivery.
LOSS OR DAMAGE IN TRANSIT
39. Pental will bear the loss or damage to Goods in transit where delivery is by Pental’s nominated carrier and delivery charges are included in the price of the Goods. In all other cases, the Applicant is responsible for loss or damage occurring in transit.
GUARANTEES
40. The Applicant acknowledges that Pental does not provide any Express Warranties (as defined in the Australian Consumer Law) other than those expressly confirmed by Pental in writing (including those on any packaging of the Goods as supplied by Pental). Subject to any law to the contrary, all terms, conditions, warranties and statements, whether express, implied, written, oral, collateral, statutory or otherwise, are excluded and Pental disclaims all liability in relation to these to the maximum extent permitted by law.
41. Without limiting clause 40, the Applicant acknowledges and agrees that all supplies of the Goods by Pental to the Applicant will be for the purposes of a business in terms of sections 2 and 43 of the Consumer Guarantees Act 1993 (NZ) and the provisions of the Consumer Guarantees Act 1993 (NZ) do not apply to any supplies made to the Applicant under these Terms and Conditions.
42. Where the Applicant supplies the Goods to any other person in the course of trading, the Applicant must not give or make any undertaking, assertion or representation in relation to the Goods without Pental’s prior approval in writing.
43. The Applicant agrees to indemnify Pental against any liability or cost incurred by Pental under the Australian Consumer Law as a result of any breach by the Applicant of the obligations contained in these Terms and Conditions.
INTELLECTUAL PROPERTY
44. All Intellectual Property Rights in the Goods is and remains the property of Pental. The Applicant acknowledges that it does not own any Intellectual Property Rights in the Goods and these Terms and Conditions do not transfer any proprietary interest in or to the Intellectual Property Rights in the Goods.
45. To the extent necessary and for the sole purpose of exercising its rights and performing its obligations under this agreement, Pental grants to the Applicant a non-exclusive, royalty free, revocable, non-transferable licence to use the Intellectual Property Rights in the Goods in accordance with this agreement, subject to any restrictions Pental may reasonably impose.
46. If the Applicant becomes aware that there is, or is likely to be:
(a) an infringement or threatened infringement of the Intellectual Property Rights in the Goods; or
(b) a common law passing off of the Goods,
the Applicant must promptly notify Pental.
47. Under the licence referred to in clause 45, the Applicant must:
(a) ensure that the Intellectual Property Rights in the Goods is used in accordance with the instructions and guidelines provided by Pental from time to time;
(b) obtain Pental’s approval to any proposed new use of the Intellectual Property Rights in the Goods; and
(c) ensure that any Intellectual Property Rights in the Goods used or developed by it accords with the laws, except if such use was directed by Pental.
48. The parties agree that the licence referred to in clause 45 excludes:
(a) the right to commence an action for trade mark infringement under section 26(1)(b) of the Trade Marks Act 1995 (Cth), which right Pental expressly reserve to itself in all instances; and
(b) the rights of an authorised user of a trade mark referred to in sections 26(1)(d), (e) and (f) of the Trade Marks Act 1995 (Cth).
49. The Applicant must not, directly or indirectly, challenge, contest or deny or assist any other person to challenge, contest or deny the validity of the Intellectual Property Rights in the Goods. The Applicant will procure that all trade marks and designs forming part of the Intellectual Property Rights in the Goods are applied in accordance with the directions of Pental from time to time.
50. The Applicant must not in any territory apply for any trade mark relating to Intellectual Property Rights in the Goods.
51. Any proceedings issued for any infringement or threatened infringement of the Intellectual Property Rights in the Goods will be under the control and at the expense of Pental and the Applicant will not commence any proceedings in relation to any infringement or threatened infringement of the Intellectual Property Rights in the Goods.
CONFIDENTIALITY
52. These Terms and Conditions and any information, drawings, specifications or data of Pental (including in relation to the Goods), constitutes confidential information and the Applicant must keep that information confidential, and not (except to the extent required by law or for the purpose of onsale of the Goods in the ordinary course of the Applicant’s business and in accordance with this agreement) disclose the information to any person without the prior written consent of Pental, unless required to do so by law or to advisers, consultants or financiers and their advisers and consultants, provided that an adviser, consultant or financier who is not under a professional obligation to keep information confidential must first execute a confidentiality agreement in which the adviser, consultant or financier undertakes the same obligations in relation to the confidential information the Applicant undertakes in these Terms and Conditions.
LIMITATION OF LIABILITY
53. Any claim that the Applicant has against Pental arising in relation to the Goods or supply of those Goods must be notified in writing to Pental within 7 days of delivery. Pental is not liable for, and the Applicant waives, any claim in respect of any Goods notified outside this time limit.
54. The liability of Pental for any and all costs, expenses, loss or damage resulting from any cause whatsoever, including negligence, is limited (at Pental’s election) to:
(a) the replacement of Goods or the supply of equivalent Goods;
(b) the repair of the Goods; or
(c) refunding the purchase price of the Goods.
55. Other than as described in clauses 54 and 56, Pental is not liable to the Applicant or the Applicant’s employees, officers, contractors or agents for any loss, harm, damage, cost or expense (including, without limitation, consequential loss, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data) of any nature however caused (whether based in tort, contract, statute or otherwise) arising directly or indirectly in relation to the Goods or the supply of the Goods.
56. Nothing in these Terms and Conditions operates to exclude, restrict or modify any rights, entitlements, remedies and liabilities that may be implied by or imposed under the Australian Consumer Law or any other statute, the exclusion, restriction or contravention of which would contravene that statute or cause any of these terms and conditions to be void.
PPS ACT AND NZ PPSA (AS APPLICABLE)
57. This document constitutes a security agreement for the purposes of the PPS Act and the NZ PPSA. The Applicant grants to Pental a security interest in all Goods and their proceeds as security for full payment of the purchase price of all Goods and all other amounts payable by the Applicant to Pental (whether under this agreement or under the terms of any specific contract relating to the supply of Goods by Pental to the Applicant) and for the Applicant’s performance of all of its other obligations to Pental. In clauses 57 to 61 the following terms have the meaning given to them in the PPS Act or the NZ PPSA, as applicable: financing change statement, financing statement, purchase money security interest, security interest and verification statement.
58. The Applicant agrees:
(a) at Pental’s request, to promptly do all things (including signing any documents) and provide all assistance and information necessary to ensure that Pental has a perfected first ranking security interest in all Goods (and the proceeds of those Goods) supplied by Pental;
(b) do all things (including signing any documents) to ensure that the security interest is enforceable, perfected and otherwise effective and to enable Pental to exercise any powers in connection with the security interest; and
(c) that Pental may register a financing statement or financing change statement and do anything else required to perfect its security interest created by this document.
59. Pental may allocate all amounts received from the Applicant in any manner it determines including any manner required to preserve any purchase money security interest in the Goods.
60. To the extent permitted by law, the Applicant waives its right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to a security interest created by this document. The following provisions of the PPS Act do not apply: section 95 (notice of removal of accession); subsection 121(4) (enforcement of liquid assets); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal); paragraph 132(3)(d) (contents of statement of account); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement). The Applicant has no rights under the following sections of the NZ PPSA: ss 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131 and 133 of the NZ PPSA.
61. The Applicant and Pental each agree that it will not disclose any of the information set out in section 275(1) of the PPS Act (or section 177(1) of the NZ PPSA, if applicable) in relation to any security interest created under this document to any person (except that Pental may do so where required due to the operation of section 275(7) of the PPS Act). Nothing in this clause 61 will prevent any disclosure by Pental that it believes is necessary to comply with its other obligations under the PPS Act, the NZ PPSA or under any other applicable law.
62. The Applicant agrees to indemnify Pental for any costs incurred by Pental under this clause.
TERMINATION
63. Either party may terminate these Terms and Conditions with immediate effect if:
(a) the other party breaches any of these Terms and Conditions and:
(b) the breach is not rectified within 14 days of notification of the breach; or
(c) the breach is not capable of remedy; or
(d) the other party ceases to carry on a business, is unable to pay its debts as they become due, is presented with a winding up petition or if any step is taken to appoint a receiver, receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, or an administrator to its assets, operations or business.
64. Pental may terminate these Terms and Conditions by providing 7 days notice.
65. On termination of these Terms and Conditions under clause 63 or 64 if any Goods have been delivered but not paid for, the purchase price for those Goods will become immediately due and payable despite any previous agreement or arrangement.
66. Termination of these Terms and Conditions does not affect any accrued rights or remedies of the parties.
67. Clauses 6 to 9, 44 to 51, 52 and this clause 67 and any indemnity or any obligation of confidence under these Terms and Conditions are independent and survive termination of these Terms and Conditions. Any other clause by its nature intended to survive termination of these Terms and Conditions survives termination of
these Terms and Conditions.
TAXES
68. In clauses 69 to 71, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Goods and Services Tax Act 1985 (NZ), as applicable, has the meaning given to it in that Act.
69. If a party makes a supply under or in connection with these Terms and Conditions in respect of which GST is payable, the consideration for the supply but for the application of this clause 69 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
70. If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 69.
71. Any consideration to be paid or provided for a supply made under or in connection with these Terms and Conditions, unless specifically described in these Terms and Conditions as GST inclusive, does not include an amount on account of GST.
72. Clauses 66 to 69 apply when an Applicant’s trading address is in New Zealand.
73. In clauses 67 to 69, a word or expression defined in the Income Tax Act 2007 (NZ) or the Goods or Services Tax Act 1985 (NZ), as applicable, has the meaning given to it in that Act.
74. If any deduction, withholding or payment for or on account of Tax is required by law to be made from or in relation to any amount paid or payable under these Terms and Conditions then:
(a) the Applicant will have full liability to pay the amount; and
(b) the sum paid or payable to the Pental will be increased to the extent necessary to ensure that after making such deduction, withholding or payment, Pental receives (free from any liability in respect of such deduction, withholding or payment) a net sum equal to the sum that Pental would have received and so retained had no such deduction, withholding or payment been made.
75. The Applicant agrees that it is liable for the payment of all Tax arising on or in relation to the supply made under or in connection with these Terms and Conditions, other than Tax levied on Pental’s overall net income.
76. For the purpose of clauses 67 and 68, Tax is defined as including all forms of taxation, duties, dues, imposts, rates and levies of New Zealand or elsewhere, including income tax, goods and services tax, customs or excise duties and withholding taxes and all costs, charges, interest, penalties, fines and expenses incidental and relating to, or arising in connection with, any such Tax.
GOVERNING LAW
77. These Terms and Conditions are governed by the laws of Victoria and the parties submit to the non exclusive jurisdiction of the courts of Victoria.
78. The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to these Terms and Conditions.
GENERAL
79. No waiver by Pental of any breach of these Terms and Conditions by the Applicant will be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
80. The Applicant agrees that Pental enters into these Terms and Conditions on its own behalf and also as agent and trustee for each related body corporate (as defined in section 50 of the Corporations Act 2001 (Cth)) of Pental and each related body corporate of Pental, may enforce these Terms and Conditions as if it were a signatory to these Terms and Conditions.
81. A term or part of a term of these Terms and Conditions that is illegal or unenforceable may be severed from these Terms and Conditions and the remaining terms or parts of the terms of these Terms and Conditions continue in force.
82. These Terms and Conditions do not create a relationship of employment, trust, agency or partnership between the parties.
83. The Applicant must not assign these Terms and Conditions, or any rights under these Terms and Conditions, without the prior written consent of Pental.
84. Every notice or other communication given under these Terms and Conditions must be in writing and addressed to the relevant party and delivered, by prepaid registered mail or sent by facsimile or email to the relevant party at the address provided in these Terms and Conditions or such other address provided by the party.
85. These Terms and Conditions and the other documents referred to in them constitute the entire agreement between the parties as to their subject matter.