1.
Definitions
1.1
“Buyer” means the person/s,
entities or any person acting on behalf of and with the authority of the Buyer
requesting the Seller to provide the Services as specified in any proposal,
quotation, order, invoice, or other documentation, and:
(a) if there is more than
one Buyer, is a reference to each Buyer jointly and severally; and
(b) if the Buyer is a
partnership, it shall bind each partner jointly and severally; and
(c) if the Buyer is on
behalf of or part of, a Trust, shall be bound in its own capacity as a trustee;
and
(d) includes the Buyer’s
executors, administrators, successors, and permitted assigns.
1.2
“Confidential
Information”
means information of a confidential nature whether oral, written or in
electronic form including, but not limited to, this Contract, either party’s
intellectual property, operational information, know-how, trade secrets,
financial and commercial affairs, Contracts, client information (including but
not limited to, “Personal Information” such as: name, address, D.O.B,
occupation, driver’s license details, electronic contact (email, Facebook or
Twitter details), medical insurance details or next of kin and other contact
information (where applicable), previous credit applications, credit history)
and pricing details.
1.3
“Contract” means the terms and
conditions contained herein, together with any quotation, order, invoice or
other document or amendments expressed to be supplemental to this Contract.
1.4
“Cookies” means small files
which are stored on a user’s computer. They are designed to hold a modest
amount of data (including Personal Information) specific to a particular client
and website and can be accessed either by the web server or the client’s
computer. If the Buyer does not wish to allow Cookies to operate in the
background when using the Seller’s website, then the Buyer shall have the right
to enable / disable the Cookies first by selecting the option to enable /
disable provided on the website, prior to making enquiries via the website.
1.5
“Goods” means all Goods or
Services supplied by the Seller to the Buyer at the Buyer’s request from time
to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be
interchangeable for the other).
1.6
“GST” means Goods and
Services Tax as defined within the “A New Tax System (Goods and Services Tax)
Act 1999” (Cth).
1.7
“Price” means the Price
payable (plus any GST where applicable) for the Goods as agreed between the
Seller and the Buyer in accordance with clause 8 below.
1.8
“Seller” means Jasa Pty Ltd ATF
Arthur Samuel Allen Family Trust T/A Sam Allen Wholesale, its successors and
assigns
or any person acting on behalf of and with the authority of Jasa Pty Ltd ATF
Arthur Samuel Allen Family Trust T/A Sam Allen Wholesale.
2.
Acceptance
2.1
The
parties acknowledge and agree that:
(a) they have read and
understood the terms and conditions contained in this Contract; and
(b) the parties are taken to
have exclusively accepted and are immediately bound, jointly and severally, by
these terms and conditions if the Buyer places an order for or accepts delivery
of the Goods.
2.2
In
the event of any inconsistency between the terms and conditions of this Contract
and any other prior document or schedule that the parties have entered into,
the terms of this Contract shall prevail.
2.3
Any
amendment to the terms and conditions contained in this Contract may only be
amended in writing by the consent of both parties.
2.4
The
Buyer acknowledges and accepts that:
(a) two (2) cash
transactions must be undertaken before any credit account can be opened;
(b) the supply of Goods on
credit shall not take effect until the Buyer has completed a credit
application with the Seller (in accordance with clause 2.4(a) and the Buyer has
been approved with a credit limit established for the account;
(c) in the event that the
supply of Goods requested exceeds the Buyer’s credit limit and/or the account
exceeds the payment terms, the Seller reserves the right to refuse delivery;
and
(d) all Goods that are
unable to be supplied will be back ordered by the Seller, unless specified
otherwise by the Buyer in writing. The Seller will make a reasonable attempt
to contact the Buyer and confirm back ordered goods are still required prior to
despatching the Goods.
2.5
Any
advice, recommendation, information, assistance or service provided by the
Seller in relation to Goods or Services supplied is given in good faith to the
Buyer, or the Buyer’s agent, and is based on the Seller’s own knowledge and
experience and shall be accepted without liability on the part of the Seller.
Where such advice or recommendations are not acted upon then the Seller shall
require the Buyer or their agent to authorise commencement of the Services in
writing. The Seller shall not be liable in any way whatsoever for any damages
or losses that occur after any subsequent commencement of the Services.
2.6
Electronic
signatures shall be deemed to be accepted by either party providing that the
parties have complied with Section 14 of the Electronic Transactions
(Queensland) Act 2001 or any other applicable provisions of that Act or any
Regulations referred to in that Act.
3.
Authorised
Representatives
3.1
The
Buyer acknowledges that the Seller shall (for the duration of the Services)
liaise directly with one (1) authorised representative, and that once
introduced as such to the Seller, that person shall have the full authority of
the Buyer to order any Goods, and/or to request any variation thereto on the
Buyer’s behalf.
The Buyer accepts that they will be solely liable to the Seller for all
additional costs incurred by the Seller (including the Seller’s profit margin)
in providing any Goods, or variation/s requested thereto by the Buyer’s duly
authorised representative.
4.
Errors
and Omissions
4.1
The
Buyer acknowledges and accepts that the Seller shall, without prejudice, accept
no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an
inadvertent mistake made by the Seller in the formation and/or administration
of this Contract; and/or
(b) contained in/omitted
from any literature (hard copy and/or electronic) supplied by the Seller in
respect of the Services.
4.2
In
circumstances where the Buyer is required to place an order for Goods, in
writing, or otherwise as permitted by these terms and conditions, the Buyer is
responsible for supplying correct order information such as, without
limitation, measurements and quantity, when placing an order for Goods (whether
they are made to order Goods or not) ("Buyer Error"). The Buyer
must pay for all Goods it orders from the Seller notwithstanding that such
Goods suffer from a Buyer Error and notwithstanding that the Buyer has not
taken or refuses to take Delivery of such Goods. The Seller is entitled to, at
its absolute discretion to waive its right under this sub-clause in relation to
Buyer Errors.
5.
Change
in Control
5.1
The
Buyer
shall give the Seller not less than fourteen (14) days prior written notice of
any proposed change of ownership of the Buyer and/or any other change in the
Buyer’s details (including but not limited to, changes in the Buyer’s name,
address, contact phone or fax number/s, change of trustees, or business
practice). The Buyer shall be liable for any loss incurred by the Seller as a
result of the Buyer’s failure to comply with this clause.
6.
On-Line
Ordering
6.1
The
Buyer acknowledges and agrees that:
(a) the Seller does not
guarantee the website’s performance;
(b) display on the website
does not guarantee the availability of any particular Goods; therefore, all
orders placed through the website shall be subject to availability of the Goods;
(c) on-line ordering may
be unavailable from time to time for regularly scheduled maintenance and/or
upgrades;
(d) there are inherent
hazards in electronic distribution, and as such the Seller cannot warrant
against delays or errors in transmitting data between the Buyer and the Seller
including orders, and you agree that to the maximum extent permitted by law,
the Seller will not be liable for any losses which the Buyer suffers as a
result of online-ordering not being available or for delays or errors in
transmitting orders;
(e) when making a
transaction through the website, the Buyer’s information will pass through a
secure server using SSL (secure sockets layer) encryption technology or any
other similar technology as disclosed by the Seller and/or displayed on the
website. The encryption process ensures that the Buyer’s information cannot be
read by or altered by outside influences; and
(f) if the Buyer is not
the cardholder for any credit card being used to pay for the Goods, the Seller
shall be entitled to reasonably assume that the Buyer has received permission
from the cardholder for use of the credit card for the transaction.
6.2
The
Seller reserves the right to terminate the Buyer’s order if it learns that you
have provided false or misleading information, interfered with other users or
the administration of the Seller’s business, or violated these terms and
conditions.
7.
Credit
Card Information
7.1
The
Seller will:
(a) keep the Buyer’s
personal details, including credit card details for only as long as is deemed
necessary by the Seller;
(b) not disclose the
Buyer’s credit card details to any third party; and
(c) not unnecessarily
disclose any of the Buyer’s personal information, except is accordance with the
Privacy Act (clause 20) or where required by
law.
7.2
The
Buyer expressly agrees that, if pursuant to this Contract, there are any unpaid
charges, other amounts due and outstanding by the Buyer, the Seller is entitled
to immediately charge the Buyer’s nominated credit card for these amounts, and
is irrevocably authorised to complete any documentation and take any action to
recover from the credit card issuer any and all amounts which may be due by the
Buyer pursuant to the terms of this Contract.
8.
Price
and Payment
8.1
The
Price shall be either:
(a)
the price as at the date of order of the
goods according to the Seller’s current price list to the Buyer, as available
to the Buyer as a weekly download from the Seller’s website
(b)
the Seller’s quoted price (subject to
clauses 8.2 and 8.3)
8.2
Where
the Seller provides a quotation, proposal or estimate:
(a) unless otherwise
specified, the quotation, proposal or estimate is valid for 30 days from the
date of issue and may be subject to such further conditions as are expressly
set out in the quote, estimate or pricing;
(b) the Seller may
withdraw the quotation, proposal or estimate at any time before the Buyer
accepts it or the Seller accepts an order by notice in writing to the Buyer;
and
(c) the quotation,
proposal or estimate will be exclusive of any applicable additional amounts
referred to in clause 8.3.
8.3
The
Seller reserves the right to change the Price:
(a) if a variation to the
Goods which are supplied is requested;
(b) if a variation to the Services
originally scheduled
(including any applicable plans or specifications) is requested; or
(c) if during the course
of the Services, the Goods cease to be available from the Seller’s third party
suppliers, then the Seller reserves the right to provide alternative Goods,
subject to prior confirmation and agreement of both parties; or
(d) in the event of
increases to the Seller in the cost of labour or materials (including, but not
limited to, overseas
transactions that may increase as a consequence of variations in foreign
currency rates of exchange and/or international freight and insurance charges) which are beyond the
Seller’s control.
8.4
Variations
will be charged for on the basis of the Seller’s quotation, proposal or
estimate and will be detailed in writing, and shown as variations on the
Seller’s invoice. The Buyer shall be required to respond to any variation
submitted by the Seller within ten (10) working days. Failure to do so will
entitle the Seller to add the cost of the variation to the Price. Payment for
all variations must be made in full at the time of their completion.
8.5
At
the Seller’s sole discretion, a reasonable non-refundable deposit may be
required upon placement of an order for Goods, in accordance with any quotation
provided by the Seller or as notified to the Buyer prior to the placement of an
order for Goods.
8.6
Time
for payment for the Goods being of the essence, the Price will be payable by
the Buyer on the date/s determined by the Seller, which may be:
(a) before delivery of the
Goods;
(b) by way of
instalments/progress payments in accordance with the Seller’s payment schedule;
(c) thirty (30) days
following the end of the month in which a statement is posted or emailed to the
Buyer’s address or address for notices;
(d) the date specified on
any invoice or other form as being the date for payment; or
(e) failing any notice to
the contrary, the date which is seven (7) days following the date of any
invoice given to the Buyer by the Seller.
8.7
Payment
may be made by cheque, electronic/on-line banking, credit card (a surcharge may
apply per transaction), or by any other method as agreed to between the Buyer
and the Seller.
8.8
Discounts
for approved credit account holders shall be applicable in respect of the Goods
supplied by the Seller to the Buyer provided the Seller receives payment to the
Seller’s bank account by the twenty-fifth (25th) day of the month following the
invoice. Any discounts applicable to the Price shall become null and void if
payment is not made within this timeframe. Any payments made by credit card
shall be subject to a settlement discount.
8.9
The
Buyer acknowledges and agrees that:
(a) a surcharge may apply
to orders under the minimum invoice value of one hundred and ten dollars ($110)
including GST; and
(b) an account
administration fee may be charged to accounts which require ongoing
maintenance.
8.10 The Seller may in its
discretion allocate any payment received from the Buyer towards any invoice
that the Seller determines and may do so at the time of receipt or at any time
afterwards. On any default by the Buyer the Seller may re-allocate any payments
previously received and allocated. In the absence of any payment allocation by
the Seller, payment will be deemed to be allocated in such manner as preserves
the maximum value of the Seller’s Purchase Money Security Interest (as defined
in the PPSA) in the Goods.
8.11 The Buyer shall not be
entitled to set off against, or deduct from the Price, any sums owed or claimed
to be owed to the Buyer by the Seller nor to withhold payment of any invoice
because part of that invoice is in dispute. Once in receipt of an invoice for
payment, if
any part of the invoice is in dispute, then the Buyer must notify the Seller in
writing within three (3) business days, the invoice shall remain due and
payable for the full amount, until such time as the Seller investigates the
disputed claim, no credit shall be passed for refund until the review is
completed. Failure to make payment may result in the Seller placing the Buyer’s
account into default and subject to default interest in accordance with clause 18.1.
8.12 Unless otherwise
stated the Price does not include GST. In addition to the Price, the Buyer must
pay to the Seller an amount equal to any GST the Seller must pay for any supply
by the Seller under this or any other agreement for the sale of the Goods. The
Buyer must pay GST, without deduction or set-off of any other amounts, at the
same time and on the same basis as the Buyer pays the Price. In addition, the
Buyer must pay any other taxes and duties that may be applicable in addition to
the Price except where they are expressly included in the Price.
9.
Delivery
of Goods
9.1
Delivery
(“Delivery”) of the Goods is taken to occur at the time that:
(a) the Buyer or the
Buyer’s nominated carrier takes possession of the Goods at the Seller’s address;
or
(b) the Seller (or the
Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated address
even if the Buyer is not present at the address.
9.2
The
cost of Delivery will be payable by the Buyer in accordance with the quotation
provided by the Seller to the Buyer, or as otherwise notified to the Buyer
prior to the placement of an order for Goods.
9.3
In
the absence of written Delivery instructions, the Seller will forward the Goods
on the Buyer’s behalf by the most suitable method of transport at the Buyer’s
expense as per clause 9.2.
9.4
The
Seller may deliver the Goods in separate instalments. Each separate instalment
shall be invoiced and paid in accordance with the provisions in these terms and
conditions.
9.5
Any
time specified by the Seller for Delivery of the Goods is an estimate only and
the Seller will not be liable for any loss or damage incurred by the Buyer because
of Delivery being late. However, both parties agree that they shall make every
endeavour to enable the Goods to be delivered at the time and place as was
arranged between both parties. If the Seller is unable to supply the Goods as
agreed solely due to any action or inaction of the Buyer, then the Seller shall
be entitled to charge a reasonable fee for redelivery and/or storage.
10.
Risk
10.1 Risk of damage to or
loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the
Goods on or before Delivery.
10.2 If any of the Goods
are damaged or destroyed following Delivery but prior to ownership passing to
the Buyer, the Seller is entitled to receive all insurance proceeds payable for
the Goods. The production of these terms and conditions by the Seller is
sufficient evidence of the Seller’s rights to receive the insurance proceeds
without the need for any person dealing with the Seller to make further
enquiries.
10.3 If the Buyer requests
the Seller to leave Goods outside the Seller’s premises for collection or to
deliver the Goods to an unattended location, then such Goods shall be left at
the Buyer’s sole risk.
10.4 The Buyer acknowledges
that:
(a) all descriptive
specifications, illustrations, drawings, data, dimensions, ratings and weights
stated in the Seller’s or the manufacturer’s fact sheets, price lists or
advertising material, are approximate only and are given by way of
identification only. The Buyer shall not be entitled to rely on such
information, and any use of such does not constitute a sale by description, and
does not form part of the Contract, unless expressly stated as such in writing
by the Seller; and
(b) while the Seller may
have provided information or figures to the Buyer regarding the performance of
the Goods, the Buyer acknowledges that the Seller has given these in good
faith, and are estimates based on industry prescribed estimates.
11.
Access
11.1 The Buyer shall ensure
that the Seller has clear and free access to affect Delivery of the Goods. The
Seller shall not be liable for any loss or damage to the site (including,
without limitation, damage to pathways, driveways and concreted or paved or grassed
areas) unless due to the negligence of the Seller.
12.
Compliance
with Laws
12.1 The Buyer and the
Seller shall comply with the provisions of all statutes, regulations and bylaws
of government, local and other public authorities that may be applicable to the
Goods
and Services.
13.
Title
13.1 The Seller and the
Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the
Seller all amounts owing to the Seller; and
(b) the Buyer has met all
of its other obligations to the Seller.
13.2 Receipt by the Seller
of any form of payment other than cash shall not be deemed to be payment until
that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed
that, until ownership of the Goods passes to the Buyer in accordance with
clause 13.1:
(a) the Buyer is only a
bailee of the Goods and must return the Goods to the Seller on request;
(b) the Buyer holds the
benefit of the Buyer’s insurance of the Goods on trust for the Seller and must
pay to the Seller the proceeds of any insurance in the event of the Goods being
lost, damaged or destroyed;
(c) the Buyer must not
sell, dispose, or otherwise part with possession of the Goods other than in the
ordinary course of business and for market value. If the Buyer sells, disposes
or parts with possession of the Goods then the Buyer must hold the proceeds of
any such act on trust for the Seller and must pay or deliver the proceeds to
the Seller on demand;
(d) the Buyer should not
convert or process the Goods or intermix them with other goods but if the Buyer
does so then the Buyer holds the resulting product on trust for the benefit of
the Seller and must sell, dispose of or return the resulting product to the
Seller as it so directs;
(e) the Buyer irrevocably
authorises the Seller to enter any premises where the Seller believes the Goods
are kept and recover possession of the Goods;
(f) the Seller may recover
possession of any Goods in transit whether or not Delivery has occurred;
(g) the Buyer shall not
charge or grant an encumbrance over the Goods nor grant nor otherwise give away
any interest in the Goods while they remain the property of the Seller; and
(h) the Seller may
commence proceedings to recover the Price of the Goods sold notwithstanding
that ownership of the Goods has not passed to the Buyer.
14.
Personal
Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security
agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to
these terms and conditions in writing the Buyer acknowledges and agrees that
these terms and conditions constitute a security agreement for the purposes of
the PPSA and creates a security interest in all Goods that have previously been
supplied and that will be supplied in the future by the Seller to the Buyer,
and the proceeds from such Goods.
14.3 The Buyer undertakes
to:
(a) promptly sign any
further documents and/or provide any further information (such information to
be complete, accurate and up-to-date in all respects) which the Seller may
reasonably require to;
(i)
register
a financing statement or financing change statement in relation to a security
interest on the Personal Property Securities Register;
(ii)
register
any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement
referred to in clause 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon
demand reimburse, the Seller for all expenses incurred in registering a
financing statement or financing change statement on the Personal Property
Securities Register established by the PPSA or releasing any Goods charged
thereby;
(c) not register a
financing change statement in respect of a security interest without the prior
written consent of the Seller;
(d) not register, or
permit to be registered, a financing statement or a financing change statement
in relation to the Goods or the proceeds of such Goods in favour of a third
party without the prior written consent of the Seller;
(e) immediately advise the
Seller of any material change in its business practices of selling the Goods
which would result in a change in proceeds derived from such sales.
14.4 The Seller and the
Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the
security agreement created by these terms and conditions.
14.5 The Buyer waives their
rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and
132(4) of the PPSA.
14.6 The Buyer waives their
rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise
agreed to in writing by the Seller, the Buyer waives their right to receive a
verification statement in accordance with section 157 of the PPSA.
14.8 The Buyer must
unconditionally ratify any actions taken by the Seller under clauses 14.3 to 14.5.
14.9 Subject to any express
provisions to the contrary (including those contained in this clause 14), nothing in these
terms and conditions is intended to have the effect of contracting out of any
of the provisions of the PPSA.
15.
Security
and Charge
15.1 In consideration of
the Seller agreeing to supply the Goods and/or provide its Services, the Buyer
grants the Seller a security interest by way of a floating charge (registerable
by the Seller pursuant to the PPSA) over all of its present and after acquired
rights, title and interest (whether joint or several) in all other assets that
is now owned by the Buyer or owned by the Buyer in the future, to the extent
necessary to secure the repayment of monies owed under this Contract for
provision of the Goods and/or Services under this Contract and/or permit the
Seller to appoint a receiver to the Buyer in accordance with the Corporations
Act 2001 (Cth).
15.2 The Buyer indemnifies
the Seller from and against all the Seller’s costs and disbursements including
legal costs on a solicitor and own client basis incurred in exercising the
Seller’s rights under this clause.
15.3 In the event that the
Buyer defaults or breaches any term of this Contract and as a result, the
security provided in clauses 13.1,14.2 and 15.1 as applicable, is
deemed insufficient by the Seller to secure the repayment of monies owed by the
Buyer to the Seller, the Buyer hereby grants the Seller a security interest as
at the date of the default, by way of a charge, that enables the right and entitlement
to lodge a caveat over any real property and or land owned by the Buyer now, or
owned by the Buyer in the future, to secure the performance of the Buyer of its
obligations under these terms and conditions (including, but not limited to,
the payment of any money.
16.
Defects, Warranties and Returns, Competition and
Consumer Act 2010 (CCA)
16.1 The Buyer must inspect
the Goods on Delivery and must within seven (7) days of Delivery notify the
Seller in writing of any evident defect/damage, shortage in quantity, or
failure to comply with the description or quote. The Buyer must notify any other
alleged defect in the Goods as soon as reasonably possible after any such
defect becomes evident. Upon such notification the Buyer must allow the Seller
to inspect the Goods.
16.2 Under applicable
State, Territory and Commonwealth Law (including, without limitation the CCA),
certain statutory implied guarantees and warranties (including, without
limitation the statutory guarantees under the CCA) may be implied into these
terms and conditions (Non-Excluded Guarantees).
16.3 The Seller
acknowledges that nothing in these terms and conditions purports to modify or
exclude the Non-Excluded Guarantees.
16.4 Except as expressly
set out in these terms and conditions or in respect of the Non-Excluded
Guarantees, the Seller makes no warranties or other representations under these
terms and conditions including but not limited to the quality or suitability of
the Goods. The Seller’s liability in respect of these warranties is limited to
the fullest extent permitted by law.
16.5 If the Buyer is a
consumer within the meaning of the CCA, the Seller’s liability is limited to
the extent permitted by section 64A of Schedule 2.
16.6 If the Seller is
required to replace the Goods under this clause or the CCA, but is unable to do
so, the Seller may refund any money the Buyer has paid for the Goods.
16.7 If the Buyer is not a
consumer within the meaning of the CCA, the Seller’s liability for any defect
or damage in the Goods is:
(a) limited to the value
of any express warranty or warranty card provided to the Buyer by the Seller at
the Seller’s sole discretion;
(b) limited to any
warranty to which the Seller is entitled, if the Seller did not manufacture the
Goods;
(c) otherwise negated
absolutely.
16.8
Subject
to this clause 16, returns will only be
accepted provided that:
(a) the Buyer has complied
with the provisions of clause 16.1; and
(b) the Seller has agreed
that the Goods are defective; and
(c) the Goods are returned
within a reasonable time at the Buyer’s cost (if that cost is not significant);
and
(d) the Goods are returned
in as close a condition to that in which they were delivered as is possible.
16.9 Further to clauses 16.1 and 16.8, the Seller may (in
its absolute discretion) accept non-defective Goods for return, in which case:
(a) no Goods will be
accepted for return without prior authorisation from the Seller, and the Buyer
has received a return authorisation number from the Seller and completed the
Seller’s “Return Form”;
(b) Goods and/or items
returned for any reason (except where supplied in error) must have freight
charges pre-paid to the Seller’s warehouse. Goods returned freight-on will be
returned to the sender without notice, at the Buyer’s cost;
(c) no claims for
shortages or incorrect deliveries will be recognised after seven (7) days from
invoice date and in accordance with clause 16.1;
(d) all returned Goods
will incur a fifteen percent (15%) restocking fee of the value of the returned
Goods plus any freight costs (except for valid warranty claims or errors made
by the Seller in the supply of the Goods); and
(e) all returns originally
ordered without the Seller’s part numbers will incur a twenty percent (20%)
restocking fee of the value of the returned Goods, plus any freight costs.
16.10 Notwithstanding
clauses 16.1 to 16.8 but subject to the
CCA, the Seller shall not be liable for any defect or damage which may be
caused or partly caused by or arise as a result of:
(a) the Buyer failing to
properly maintain or store any Goods;
(b) the Buyer using the
Goods for any purpose other than that for which they were designed;
(c) the Buyer continuing
the use of any Goods after any defect became apparent or should have become
apparent to a reasonably prudent operator or user;
(d) the Buyer failing to
follow any instructions or guidelines provided by the Seller;
(e) fair wear and tear,
any accident, or act of God.
16.11 Notwithstanding
anything contained in this clause if the Seller is required by a law to accept
a return, then the Seller will only accept a return on the conditions imposed
by that law.
16.12 Subject to clause 16.1, customised, or
non-stocklist items or Goods made or ordered to the Buyer’s specifications are
not acceptable for credit or return.
17.
Intellectual
Property
17.1 Where the Seller has
designed, drawn or developed Goods for the Buyer, then the copyright in any
designs and drawings and documents shall remain the property of the Seller. Under
no circumstances may such designs, drawings and documents be used without the
express written approval of the Seller.
17.2 The Buyer warrants
that all designs, specifications, or instructions given to the Seller will not
cause the Seller to infringe any patent, registered design or trademark in the
execution of the Buyer’s order and the Buyer agrees to indemnify the Seller
against any action taken by a third party against the Seller in respect of any
such infringement.
17.3 The Buyer agrees that
the Seller may (at no cost) use for the purposes of marketing or entry into any
competition, any documents, designs, drawings or Goods which the Seller has
created for the Buyer.
18.
Default
and Consequences of Default
18.1 Interest on overdue
invoices shall accrue daily from the date when payment becomes due, until the
date of payment, at a rate of two and a half percent (2.5%) per calendar month
(and at the Seller’s sole discretion such interest shall compound monthly at such
a rate) after as well as before any judgment.
18.2 If the Buyer owes the
Seller any money, the Buyer shall indemnify the Seller from and against all
costs and disbursements:
(a) incurred; and/or
(b) which would be
incurred and/or
(c) for which by the Buyer
would be liable;
in regard to legal
costs on a solicitor and own client basis incurred in exercising the
Seller’s rights under these terms and conditions, internal administration fees,
the Seller’s Contract fees owing for breach of these terms and conditions’,
including, but not limited to, contract default fees and/or recovery costs (if
applicable), as well as bank dishonour fees.
18.3 Further to any other
rights or remedies the Seller may have under this Contract, if a Buyer has made
payment to the Seller, and the transaction is subsequently reversed, the Buyer
shall be liable for the amount of the reversed transaction, in addition to any
further costs incurred by the Seller under this clause 18 where it can be
proven that such reversal is found to be illegal, fraudulent or in
contravention to the Buyer’s obligations under this Contract.
18.4 Without prejudice to
the Seller’s other remedies at law the Seller shall be entitled to cancel all
or any part of any order of the Buyer which remains unfulfilled and all amounts
owing to the Seller shall, whether or not due for payment, become immediately
payable if:
(a) any money payable to
the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable
to make a payment when it falls due;
(b) the Buyer has exceeded
any applicable credit limit provided by the Seller;
(c) the Buyer becomes
insolvent, convenes a meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for the benefit of its
creditors; or
(d) a receiver, manager,
liquidator (provisional or otherwise) or similar person is appointed in respect
of the Buyer or any asset of the Buyer.
19.
Cancellation
19.1 Without prejudice to
any other remedies the parties may have, if at any time either party is in
breach of any obligation (including those relating to payment) under these
terms and conditions (“the Breaching Party”) the other party may suspend
or terminate the supply or purchase of Goods and/or Services to the other party,
with immediate effect, by providing the Breaching Party with written notice.
Neither party will be liable for any loss or damage the other party suffers
because one of the parties has exercised its rights under this clause.
19.2 If the Seller, due to
reasons beyond the Seller’s reasonable control, is unable to the deliver any
Goods and/or Services to the Buyer, the Seller may cancel any Contract to which
these terms and conditions apply or cancel Delivery of Goods and/or Services at
any time before the Goods and/or Services are delivered by giving written
notice to the Buyer. On giving such notice the Seller shall repay to the Buyer
any money paid by the Buyer for the Goods and/or Services. The Seller shall not
be liable for any loss or damage whatsoever arising from such cancellation.
19.3 The Buyer may cancel
Delivery of the Goods and/or Services by written notice served within twenty-four
(24) hours of placement of the order. If the Buyer cancels Delivery in
accordance with this clause 19.3, the Buyer will not
be liable for the payment of any costs of the Seller, except where a deposit is
payable in accordance with clause 8.5. Failure by the Buyer
to otherwise accept Delivery of the Goods and/or Services shall place the Buyer
in breach of this Contract.
19.4 Cancellation of orders
for Goods made to the Buyer’s specifications, or for non-stocklist items, will not
be accepted once production has commenced, or an order has been placed.
20.
Privacy
Policy
20.1 All emails, documents,
images, or other recorded information held or used by the Seller is Personal
Information, as defined and referred to in clause 20.3, and therefore
considered Confidential Information. The Seller acknowledges its obligation in
relation to the handling, use, disclosure and processing of Personal
Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC
of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB)
and any statutory requirements, where relevant in a European Economic Area
(“EEA”), under the EU Data Privacy Laws (including the General Data Protection
Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Seller
acknowledges that in the event it becomes aware of any data breaches and/or
disclosure of the Buyer’s Personal Information, held by the Seller that may
result in serious harm to the Buyer, the Seller will notify the Buyer in
accordance with the Act and/or the GDPR. Any release of such Personal
Information must be in accordance with the Act and the GDPR (where relevant)
and must be approved by the Buyer by written consent, unless subject to an
operation of law.
20.2 Notwithstanding clause
20.1, privacy limitations
will extend to the Seller in respect of Cookies where the Buyer utilises the
Seller’s website to make enquiries. The Seller agrees to display reference to
such Cookies and/or similar tracking technologies, such as pixels and web
beacons (if applicable), such technology allows the collection of Personal
Information such as the Buyer’s:
(a) IP address, browser,
email client type and other similar details;
(b) tracking website usage
and traffic; and
(c) reports are available
to the Seller when the Seller sends an email to the Buyer, so the Seller may
collect and review that information (“collectively Personal Information”)
If the Buyer consents
to the Seller’s use of Cookies on the Seller’s website and later wishes to
withdraw that consent, the Buyer may manage and control the Seller’s privacy
controls via the Buyer’s web browser, including removing Cookies by deleting
them from the browser history when exiting the site.
20.3 The Buyer agrees that
the Seller may exchange information about the Buyer with those credit providers
and with related body corporates for the
following purposes:
(a) to assess an
application by the Buyer; and/or
(b) to notify other credit
providers of a default by the Buyer; and/or
(c) to exchange
information with other credit providers as to the status of this credit
account, where the Buyer is in default with other credit providers; and/or
(d) to assess the
creditworthiness of the Buyer including the Buyer’s repayment history in the
preceding two (2) years.
20.4 The Buyer consents to
the Seller being given a consumer credit report to collect personal credit
information relating to any overdue payment on commercial credit.
20.5 The Buyer agrees that
personal credit information provided may be used and retained by the Seller for
the following purposes (and for other agreed purposes or required by):
(a) the provision of
Goods; and/or
(b) analysing, verifying
and/or checking the Buyer’s credit, payment and/or status in relation to the
provision of Goods; and/or
(c) processing of any
payment instructions, direct debit facilities and/or credit facilities
requested by the Buyer; and/or
(d) enabling the
collection of amounts outstanding in relation to the Goods.
20.6 The Seller may give
information about the Buyer to a CRB for the following purposes:
(a) to obtain a consumer
credit report;
(b) allow the CRB to
create or maintain a credit information file about the Buyer including credit
history.
20.7 The information given
to the CRB may include:
(a) Personal Information as
outlined in 20.3 above;
(b) name of the credit
provider and that the Seller is a current credit provider to the Buyer;
(c) whether the credit
provider is a licensee;
(d) type of consumer
credit;
(e) details concerning the
Buyer’s application for credit or commercial credit (e.g. date of
commencement/termination of the credit account and the amount requested);
(f) advice of consumer
credit defaults (provided the Seller is a member of an approved OAIC External
Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding
monies which are overdue by more than sixty (60) days and for which written
notice for request of payment has been made and debt recovery action commenced
or alternatively that the Buyer no longer has any overdue accounts and the
Seller has been paid or otherwise discharged and all details surrounding that discharge
(e.g. dates of payments);
(g) information that, in
the opinion of the Seller, the Buyer has committed a serious credit
infringement;
(h) advice that the amount
of the Buyer’s overdue payment is equal to or more than one hundred and fifty
dollars ($150).
20.8 The Buyer shall have
the right to request (by e-mail) from the Seller:
(a) a copy of the Personal
Information about the Buyer retained by the Seller and the right to request
that the Seller correct any incorrect Personal Information; and
(b) that the Seller does
not disclose any Personal Information about the Buyer for the purpose of direct
marketing.
20.9
The Seller will destroy Personal Information upon the Buyer’s
request (by e-mail) or if it is no longer required unless it is required to
fulfil the obligations of this Contract or is required to be maintained and/or
stored in accordance with the law.
20.10
The
Buyer can make a privacy complaint by contacting the
Seller via e-mail. The Seller will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to reach a decision on
the complaint within thirty (30) days of receipt of the complaint. If the Buyer
is not satisfied with the resolution provided, the Buyer can make a complaint
to the Information Commissioner at www.oaic.gov.au.
21.
Service
of Notices
21.1 Any written notice
given under this Contract shall be deemed to have been given and received:
(a) by handing the notice
to the other party, in person;
(b) by leaving it at the
address of the other party as stated in this Contract;
(c) by sending it by
registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile
transmission to the fax number of the other party as stated in this Contract
(if any), on receipt of confirmation of the transmission;
(e) if sent by email to
the other party’s last known email address.
21.2 Any notice that is
posted shall be deemed to have been served, unless the contrary is shown, at
the time when by the ordinary course of post, the notice would have been
delivered.
22.
Trusts
22.1 If the Buyer at any
time upon or subsequent to entering in to the Contract is acting in the
capacity of trustee of any trust or as an agent for a trust (“Trust”) then
whether or not the Seller may have notice of the Trust, the Buyer covenants
with the Seller as follows:
(a) the Contract extends
to all rights of indemnity which the Buyer now or subsequently may have against
the Trust, the trustees and the trust fund;
(b) the Buyer has full and
complete power and authority under the Trust or from the Trustees of the Trust
as the case may be to enter into the Contract and the provisions of the Trust
do not purport to exclude or take away the right of indemnity of the Buyer
against the Trust, the trustees and the trust fund. The Buyer will not release
the right of indemnity or commit any breach of trust or be a party to any other
action which might prejudice that right of indemnity;
(c) the Buyer will not
during the term of the Contract without consent in writing of the Seller (the
Seller will not unreasonably withhold consent), cause, permit, or suffer to
happen any of the following events:
(i) the removal,
replacement or retirement of the Buyer as trustee of the Trust;
(ii) any alteration to or
variation of the terms of the Trust;
(iii) any advancement or distribution
of capital of the Trust; or
(iv) any resettlement of the trust fund or
trust property.
23.
General
23.1 Any dispute or
difference arising as to the interpretation of these terms and conditions or as
to any matter arising herein, shall be submitted to, and settled by, mediation
before resorting to any external dispute resolution mechanisms (including
arbitration or court proceedings) by notifying the other party in writing
setting out the reason for the dispute. The parties shall share equally the
mediator’s fees. Should mediation fail to resolve the dispute, the parties
shall be free to pursue other dispute resolution avenues.
23.2 The failure by either
party to enforce any provision of these terms and conditions shall not be
treated as a waiver of that provision, nor shall it affect that party’s right
to subsequently enforce that provision. If any provision of these terms and
conditions shall be invalid, void, illegal or unenforceable, that provision
shall be severed from this Contract, and the validity, existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or
impaired.
23.3 These terms and
conditions and any Contract to which they apply shall be governed by the laws
of Queensland and are subject to the jurisdiction of the courts in Brisbane,
Queensland. These terms prevail over all terms and conditions of the Buyer
(even if they form part of the Buyer’s purchase order).
23.4 The Seller may licence
and/or assign all or any part of its rights and/or obligations under this Contract
without the Buyer’s consent provided the assignment does not cause detriment to
the Buyer.
23.5 The Buyer cannot
licence or assign without the written approval of the Seller.
23.6 The Seller may elect
to subcontract out any part of the Services but shall not be relieved from any
liability or obligation under this Contract by so doing. Furthermore, the Buyer
agrees and understands that they have no authority to give any instruction to
any of the Seller’s sub-contractors without the authority of the Seller.
23.7 The Buyer agrees that
the Seller may amend their general terms and conditions for subsequent future Contracts
with the Buyer by disclosing such to the Buyer in writing. These changes shall
be deemed to take effect from the date on which the Buyer accepts such changes,
or otherwise at such time as the Buyer makes a further request for the Seller
to provide Goods to the Buyer.
23.8 Neither party shall
be liable for any default due to any act of God, war, terrorism, strike,
lock-out, industrial action, fire, flood, storm, national or global pandemics
and/or the implementation of regulation, directions, rules or measures being
enforced by Governments or embargo, including but not limited to, any
Government imposed border lockdowns (including, worldwide destination ports), etc.,
(“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not
apply to a failure by the Buyer to make a payment to the Seller, once the parties
agree that the Force Majeure event has ceased.
23.9 Both parties warrant that they have the power to enter
this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and
that this Contract creates binding and valid legal obligations on them.
23.10 The rights and
obligations of the parties will not merge on completion of any transaction
under this Contract, and they will survive the execution and Delivery of any
assignment or other document entered, for the purpose of, implementing any
transaction under this Contract.
23.11 If part or all of any
term of this Contract is or becomes invalid, illegal or unenforceable, it shall
be severed from this Contract and shall not affect the validity and
enforceability of the remaining terms of this Contract.