Any goods supplied to the Customer by the Supplier (“Goods”) are supplied on the following terms and conditions.
1. The following definitions apply in these terms and conditions:“ACL” means Schedule 2 (Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth). “Consumer” means:
a. a natural person (“Individual”) acquiring Goods for personal, domestic or household use or consumption;
b. an Individual or a corporation (“Person”) acquiring Goods at a price not exceeding $40,000; or
c. a Person acquiring Goods of a kind ordinarily acquired for personal, domestic or household use or consumption, but excludes a Person acquiring the Goods, or holding himself or herself out as acquiring the Goods, for the purpose of:
d. resupply; or
e. using them up or transforming them, in trade or commerce in the course of a production or manufacture, or in the course of repairing or treating other goods or fixtures on land.
2. The Customer must notify the Supplier in writing of any changes to the legal status of its account trading name.
3. The granting of credit to the Customer is at the absolute discretion of the Supplier.
4. Delivery dates or times agreed to by the Supplier, are to be taken as estimates only. If there is a delay in delivery, the Goods will be delivered in a reasonable time thereafter. If expedited or postponed delivery is requested by the Customer, then the Customer must pay any additional costs incurred by the Supplier as a result including, but not limited to, storage and insurance costs. Where Goods are delivered to the Customer in instalments, the Customer must pay the invoice price for each instalment within the Suppliers’ terms and conditions, even if non-delivery or delay in delivery of any other instalment has occurred.
5. Unless otherwise agreed in writing by the parties, all Goods dispatched using Customer arranged transport are at the Customer’s risk. Breakage, damage or loss in transit arranged by the Customer is the Customer’s responsibility.
6. All orders with an invoice value of $200.00 or less (Surcharge Threshold) will be subject to a packing, delivery and/or freight fee of $20 ex GST. This fee will not apply to back orders if the original value exceeded the Surcharge Threshold.
7. Where “Proof of Delivery” is obtained and delivered, a $25.00 fee will be charged by the Supplier to the Customer
8. If delivery of Goods is refused by the Customer or anyone on its behalf (other than in accordance with the Customer’s rights under the ACL), the Supplier may charge:
a. the invoice price of the Goods together with interest on that amount at the overdraft rate on business accounts charged by Suppliers’ bank on similar amounts from the date of refusal until payment of the invoice price; and
b. any additional costs reasonably incurred by the Supplier including, but not limited to, carriage, storage and insurance costs reasonably incurred by the Supplier in relation to those Goods.
9. If the Customer or anyone on its behalf cancels an order for Goods prior to delivery, the Customer must pay to the Supplier the cost (if any) to the Supplier, including but not limited to overheads and administrative costs, of producing the Goods or partly producing the Goods up to that time.
10. Property in the Goods supplied by the Supplier to the Customer does not pass to the Customer until the Goods and all other Goods supplied by the Supplier to the Customer have been paid for in full. Until property in the Goods passes to the Customer;
a. In addition to any rights the Supplier may have under Chapter 4 of the Personal Property Securities Act 2009 (Cth) and any regulations made at any time pursuant to that Act (“PPS Act”), the Supplier is entitled at any time until title in and to the Goods passes to the Customer to demand the return of the Goods and, except where the Customer is an Individual, is entitled without notice to the Customer and without liability to the Customer to enter (or have its representatives enter) any premises occupied by the Customer in order to search for and remove the Goods. The Customer and its representatives must provide all reasonable assistance to the Supplier and its representatives for this purpose. If there is any inconsistency between the Supplier’s rights under this clause 10(b) and its rights under Chapter 4 of the PPS Act, this clause 10(b) prevails.
b. Where the Supplier’s Goods are held by the Customer, the Customer agrees with the Supplier to keep the Goods:
i) as fiduciary for the Supplier; and
ii) stored in a manner which clearly identifies the Goods and shows the Suppliers ownership.
11. Notwithstanding clauses 10 (a) to (b), the Customer acknowledges that if it sells, leases or otherwise deals with the Goods or products incorporating the Goods before title in and to the Goods has passed to the Customer in accordance with this agreement, it will hold the proceeds of sale, lease or such dealing on trust for the Supplier.
12. The Customer acknowledges that Goods supplied by the Supplier are resold by the Customer in the same order as the Goods are supplied by the Supplier.
13. If the Customer fails to pay any amount due to the Supplier or if in the Suppliers’ opinion there is any matter likely to prejudice the trading ability or asset position of the Customer, then in addition to any other rights it may have, the Supplier can:
a. withhold delivery on any further Goods ordered by the Customer but not yet delivered; and/or
b. cancel the Customer’s credit account.
14. If a cheque tendered by or on behalf of the Customer in payment of any invoice is not honoured upon presentation, the Customer will pay to the Supplier the sum of $25.00 (or such other amount as maybe charged by the Suppliers financial institution) in respect of each presentation, which the Supplier can debit to the Customer’s account.
15. Prices for supplies made by the Supplier exclude GST and the GST incurred in the price will be payable by the Customer.
16. The Customer must inspect all Goods upon delivery and within 72 hours of delivery notify the Supplier in writing of any matters by which the Customer alleges that the Goods are not in accordance with the Customers order.
17. The Customer acknowledges that the Supplier has a security interest as defined in the PPS Act in the Goods and any proceeds described in clause 11 until title passes to the Customer in accordance with this agreement. This security interest secures all moneys owing by the Customer to the Supplier under this agreement or otherwise. The Customer acknowledges that each security interest over Goods (or their proceeds) arising under this agreement is a “purchase money security interest” under the PPS Act to the extent that it secures payment of the amounts owing in relation to those particular Goods. The Customer agrees to do anything at its own expense (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which the Supplier asks and considers necessary for the purposes of:
a. ensuring that any security interest created under this agreement is enforceable, perfected and otherwise effective; or
b. enabling the Supplier to apply for any registration, or give any notification, in connection with any security interest so that the security interest has the priority required by the Supplier; or
c. enabling the Supplier to exercise rights in connection with the security interest.
The security interests arising under this agreement attach to the Goods when the Customer obtains possession of the Goods and the parties confirm that they have not agreed that any security interest arising under that clause attaches at any later time.
18. The Customer agrees and acknowledges that:
a. These terms and conditions constitute a security agreement for the purposes of section 20 of the PPS Act;
b. If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interests created under this agreement, the Customer agrees that the following provisions of the PPS Act will not apply:
i) section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Customer;
ii) section 120 (enforcement of liquid assets);
iii) section 121(4) (enforcement of liquid assets – notice to grantor);
iv) section 125 (obligation to dispose of or retain collateral);
v) section 128 (secured party may dispose of collateral);
vi) section 129 (disposal by purchase);
vii) section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Customer;
viii) section 132(3)(d) (contents of statement of account after disposal);
ix) section 132(4) (statement of account if no disposal);
x) sections 134(1) (retention of collateral);
xi) section 135 (notice of retention);
xii) section 142 (redemption of collateral);
xiii) section 143 (reinstatement of security agreement).
c. Where the Supplier has rights in addition to those under Chapter 4 of the PPS Act those rights will continue to apply.
d. Until ownership of the Goods passes, the Customer must not give the Supplier a written demand or allow any other
person to give the Supplier a written demand requiring the Supplier to register a financing change statement under the
PPS Act in relation to the Goods or enter into or allow any other person to enter into the register of personal property
securities a financing change statement under the PPS Act in relation to the Goods.
e. It will give the Supplier at least 30 days’ prior notice before making any changes to its name;
f. It will not change its principal place of business or corporate details (including ACN and place of registration) without the Supplier’s consent.
19. These terms and conditions are governed by the law of Victoria, and the Customer, and the Supplier agrees to submit to the exclusive jurisdiction of the Courts of that State.
20. The Customer will pay to the Supplier all costs, expenses and disbursements incurred by the Supplier (including without limiting the generality of the foregoing, debt collection costs, agency fees and commissions and legal costs) relating to the enforcement of these terms and conditions or in connection with the perfection or registration of any security interest pursuant to the PPS Act. .
21. Where the Customer is a natural person, the Customer warrants and declares that the credit provided under the credit account is to be applied wholly or predominantly for business or investment purposes (or for both purposes) and not for personal, domestic or household purposes.
22. The Customer may order Goods from the Supplier either in writing, by electronic means or by such other method as the parties may agree from time to time.
23. An order for Goods constitutes an offer to purchase the Goods by the Customer subject to these terms and conditions. Each order must nominate a delivery point for the Goods.
24. The Supplier may at its absolute discretion decline any order either in whole or in part.
25. The price and type of Goods comprised in an order is to be calculated by reference to the Supplier’s current price list (which may be updated from time to time by the Supplier) and such other terms as may be agreed by the Customer and the Supplier from time to time. The Customer must ensure that they are in possession of the current price list for the Supplier’s Goods.
26. Acceptance of an order by the Supplier takes effect on delivery (and not before) by the Supplier of the subject Goods to the delivery point nominated in the order. Upon delivery an agreement for the supply of Goods comes into existence between the Supplier and the Customer.
27. The Customer must pay the Supplier for the Goods within the period stated on the tax invoice. Payment must be by EFT to nominated bank account, COD or Cash with Order. Payment for product using a credit card will attract a 1.5% surcharge at the time of payment. Amounts not paid within the period stated on the tax invoice the will incur interest at the overdraft rate on business accounts charged by Suppliers’ bank on similar amounts from the date that the amount is due until payment is made.
28. Credit limits are as approved by the Supplier at its absolute discretion and notified to the Customer pursuant to the Customer’s application provided that the Supplier may vary the credit limits at any time on written notice to the Customer in accordance with clause 29 below.
29. The Supplier may vary these terms and conditions (including the withdrawal of credit) by providing written notice to the Customer, such variation to take effect for all orders placed by the Customer after receiving such notice. By ordering more Goods from the Supplier after receiving notice of a variation to these terms and conditions, the Customer accepts and is bound by such variation from that date.
30. The Customer (and each of its individual directors, partners or proprietors) and each person signing as guarantor of the Customer’s obligations under this credit application (each a “Guarantor”) acknowledges and agrees that the Supplier and any related bodies corporate:
a. may give certain information about them to related bodies corporate of the supplier, a credit reporting agency, other
credit providers, collecting agencies or legal firms (some being located in foreign countries) in order to obtain a credit
report about them or to recover money which is due and payable from them. The information which may be given is
covered by s18E(1) of the Privacy Act 1988 (Cth) (the “Privacy Act”) and may include, as relevant, identity particulars and
the fact that the Customer has applied for credit or the Guarantor has offered to act as guarantor; and
b. may, in assessing whether to grant the Customer’s credit application or whether to accept the Guarantor as a guarantor, seek and obtain information about them from a credit reporting agency or another credit provider and may give information about them to another credit provider. (The information may include anything about credit worthiness, history, standing or capacity (including information about commercial credit) which credit providers are permitted by the Privacy Act to obtain or receive.)
31. If the Customer:
a. breaches the terms and conditions;
b. makes any false representation (whether by act or omission) in respect of the Customer’s application for credit, including any false representation (whether by act or omission) in relation to the Customer’s financial position; then without limiting any other rights of the Supplier, the Supplier may:
i) terminate the credit terms; and/or
ii) refuse to supply any Goods to the Customer,
32. The Customer expressly agrees and acknowledges that it is a condition of the Supplier approving the Customer’s application for credit and supplying Goods that any supply of Goods by the Supplier is subject only to these terms and conditions and the Customer acknowledges that these terms and conditions will prevail over the terms and conditions of purchase or other order terms of the Customer (if any).
33. The Customer has read and agrees to the terms and conditions and warrants that all information provided by the Customer to the Supplier is true, complete and correct. The Customer requests the Supplier to accept this credit application and upon acceptance by the Supplier the Customer agrees to be bound by the terms and conditions.
34. The non-exercise by the Supplier of or delay by the Supplier in exercising any power or right does not operate as a waiver of that power or right, nor does any single exercise of power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the Supplier.
35. The Customer and the Supplier agree that neither of them will disclose to an ‘interested person’ (as defined in section 275(9) of the PPS Act) or any other person any information of the kind described in section 275(1) of the PPS Act.
36. The Supplier does not need to give the Customer any notice under the PPS Act (including a notice of a verification statement) unless the notice is required by the PPS Act and that requirement cannot be excluded.
37. Each party agrees to keep all information of the other party that is of a confidential nature (including pricing) which is disclosed arising out of or in connection with these terms and conditions (apart from information in the public domain or independently developed by the other party) in strict confidence. A party must only use the other party’s confidential information for purposes necessary to comply with, or enjoy a benefit conferred by, these terms and conditions.
38. Nothing in these terms and conditions is intended to exclude, restrict or modify rights which the Customer may have under the ACL or otherwise which may not be excluded, restricted or modified by agreement. If any provision of these terms and conditions is invalid under any applicable law, that provision is enforceable to the extent that it is not invalid, whether it is in serviceable terms or not.
39. If the Customer is not a Consumer, then to the extent permitted by law, all conditions, warranties and liabilities, implied, statutory or otherwise not contained in this agreement (or in any written warranty statement provided by the Supplier with the Goods (“Supplier Warranty”)), are excluded.
40. If the Customer is not a Consumer, then to the extent permitted by law the Supplier is not liable to the Customer for any loss, however caused (including by negligence of the Supplier), suffered or incurred by the Customer due to a breach of this agreement or in relation to any defect or deficiency in the Goods (other than as set out in any Supplier Warranty).
This clause does not limit the Supplier’s liability to a Customer who is a Consumer.
41. If the Customer is not a Consumer, Goods will not be accepted for return for reasons other than defects without the prior agreement of the Supplier. Where the parties agree that Goods may be returned, a 30% handling fee of the value of the order may be charged by the Supplier to the Customer.
42. If the Customer is a Consumer, then:
a. the Goods come with guarantees that cannot be excluded under the ACL;
b. the Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage; and
c. the Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
43. The Supplier may, in accordance with a Supplier Warranty and on provision of sufficient proof of purchase by the Customer, provide trained service staff to remedy problems in Goods. If a problem arises from an initial faulty installation or incompatible or faulty product of another brand, a service charge of $50.00 per hour (including travelling time), with a minimum fee of $50.00 will be charged by the Supplier to the Customer.