Terms and Conditions of Sale
1. Definitions and interpretation
1.1 Definitions
In these Terms and Conditions, unless the context requires otherwise:
Agreement means the agreement between the Supplier and the Customer for the supply of Goods and/or services, consisting of:
(a) the Accepted Order; and
(b) these Terms and Conditions.
Approvals means any certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this Agreement.
Accepted Order means an Order that is accepted by the Supplier.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Authority means any government, semi- governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person.
Business Day means a day which is not a Saturday, Sunday or public holiday.
Change in Control means:
(a) any alteration in the legal or beneficial ownership of, or any issue of shares in, the Customer, or any other fact, matter or circumstance, the effect of which is to alter the Control of the Customer, from the Control which exists as at the date of this document. It may be direct or indirect and may be as a result of or by means of any trust, agreement, arrangement or understanding whether legally enforceable or not;
(b) where the Customer has entered into this document in the capacity of trustee of a trust, the Customer ceasing to be the trustee of that trust; or
(c) where the Customer has entered into this document in the capacity of trustee of a trust, a change in the underlying beneficial interests of that trust.
Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.
Consumer Guarantee means a consumer guarantee as it applies to supplies made under this agreement, as set out in under Part 3-2, Division 1 of the Australian Consumer Law.
Control means:
(a) in relation to any body corporate (including without limitation, a body corporate in the capacity as trustee of any trust property), the ability of any person to exercise control over the body corporate by virtue of the holding of voting shares in that body corporate or by any other means including, without limitation, the ability to directly or indirectly remove or appoint all or a majority of the directors of the body corporate; and
(b) in relation to an individual, the ability of any person to direct that person to act in accordance with their instructions whether by operation of any law, deed, arrangement or understanding, custom or any other means.
Customer means the person to whom Goods are supplied in accordance with this Agreement. Default Rate means 12% per annum.
Delivery Address means the delivery address notified by the Customer in an Order.
Delivery Date means the delivery date described in the Accepted Order.
Deposit means, as applicable, the amount stated in the Accepted Order which is payable at the time the Order for Goods is placed.
Event of Default means an event of default described in clause 15.
Force Majeure Event means an act of God, epidemics and pandemics, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock- outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
GST has the meaning given in GST Law.
GST Law has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Goods means the Supplier Goods described in the Accepted Order
Quotation means a Quotation issued by the Supplier to the Customer in relation to the invitation for Supply of Goods and services. Invoice means an invoice issued by the Supplier to the Customer in relation to an Accepted Order. Insolvency Event means the happening of any one or more of the following events:
(a) in relation to a natural person:
(i) that person being unable to pay his or her debts as and when they fall due;
(ii) an application and filing for bankruptcy being made in respect of that person; or
(iii) a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
(b) in relation to a body corporate:
(i) that body corporate being unable to pay its debts as and when they fall due;
(ii) a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
(iii) an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
(iv) that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
(v) that body corporate entering into, or resolving to enter into, a deed of company arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
Order has the meaning given in clause 3.1. Payment Date means the payment date set out in the Accepted Order.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Properties Security Register.
Security Interest has the meaning given in the PPSA.
Supplier means The Good Lady Pty Ltd (ABN 34 132 581 965).
Taxes means any tax, levy, charge, impost, rates, duty, fee, deduction, compulsory loan or withholding tax which is (or is able to be) assessed, levied, imposed or collected by or payable to any Authority and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed or made on or in respect of the above.
Terms and Conditions means these terms and conditions as varied or otherwise amended online from time to time.
1.2 Interpretation
In these Terms and Conditions:
(a) a reference to the singular includes the plural and vice versa.
(b) a reference to a given gender includes all other genders;
(c) other parts of speech and grammatical forms of a word or phrase defined in this deed have a corresponding meaning;
(d) use of the word including and similar expressions are not, nor are they to be interpreted as, words of limitation;
(e) a reference to a person includes a natural person, a company or other entities recognised by law;
(f) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(g) a reference to writing includes any mode of reproducing words, figures or symbols in tangible and permanently visible form and includes fax transmission;
(h) all references to parties are to the parties to this agreement;
(i) a reference to a party includes the party’s executors, administrators, successors and permitted assigns;
(j) where any obligation is imposed on, or any benefit takes effect for, two or more persons, the obligation binds or takes effect for the benefit of (as the case may be) those persons jointly and each of them severally;
(k) any word not defined in these Terms and Conditions will be given its meaning set out in other components of this Agreement or, if not otherwise define, its ordinary and natural meaning; and
(l) in the event of inconsistency, the following order of priority should apply to the Agreement:
(i) Accepted Order; and
(ii) Terms and Conditions.
1.3 Headings
The headings are for ease of reference only and do not affect the interpretation of this Agreement.
2 Agreement to supply
2.1 The Supplier agrees to supply the Goods and/or Services to the Customer on the Delivery Date in accordance with the terms of the Agreement.
2.2 No amendment, alteration, waiver or cancellation of any of these terms is binding on the Supplier unless confirmed by the Supplier in writing. The Customer acknowledges that no employee or agent of the Supplier is authorised to make any representation, warranty or promise in relation to the Goods sold pursuant to this agreement or these terms of sale, other than as contained in these terms or as confirmed in writing by Supplier.
2.3 Quotations
2.3 Any written quotation provided by the Supplier to any of its Customer’s concerning the supply of Goods and services is, unless previously withdrawn by the Supplier at any time:
(a) Valid for acceptance for a period of thirty (30) days from the date of the quotation after which time it will lapse.
(b) an invitation to treat only;
(c) subject to the Customer offering to enter into an agreement in accordance with these terms. Such agreement shall be deemed to be accepted by the Supplier when the Supplier confirms its acceptance of such offer in writing.
2.4 All prices quoted in the written quotation or verbally to the Customer for the supply of Goods exclude GST and other taxes and duties payable in respect of the Goods unless stated otherwise.
2.5 Customer acknowledgements
2.5. The Customer acknowledges that:
(a) it has not relied on any advice, recommendation, information or assistance provided by the Supplier or any employee or agent of the Supplier in relation to the sale of Goods and/or services or the use or application of such Goods or services;
(b) the Customer has the sole responsibility to satisfy itself that the Goods or services are suitable for the use of the Customer or any contemplated use by the Customer whether or not such use is known by the Supplier; and
(c) any description of Goods provided in a quotation or notice is given by way of identification only and the use of such description does not constitute a contract of sale by description;
3 Goods orders
3.1 Subject to this clause 3, the Customer may submit a purchase order (in response to a quote issued by the Supplier or otherwise) for Goods by providing the Supplier with written notice (each an Order).
3.2 Each Order constitutes an offer by the Customer to purchase the Goods specified in that Order on the terms of these Terms and Conditions (to the exclusion of any other terms other than those which apply or cannot be excluded by operation of law), unless otherwise expressly agreed in writing.
3.3 The Supplier may, in its sole discretion:
(a) accept an Order by supplying the Goods specified in that Order; or
(b) decline an Order (without being obliged to give reason for doing so) by giving notice to that effect to the Customer.
3.4 The Supplier reserves the right to stipulate a minimum order quantity at any time for the Goods.
4 Delivery
4.1 Unless otherwise agreed in writing:
(a) the Supplier will arrange for the freight of the Goods to the Delivery Address (or the Sites as required) at the Customer’s cost;
(b) the Supplier will not arrange insurance of the Goods during freight; and
(c) the price for the Goods is exclusive of all freight and other carrier costs and any insurance associated with a delivery must be paid by the Customer on the terms of the Supplier’s invoice and in accordance with clause 6.
4.2 The Supplier will deliver the Goods to the Delivery address, or such other Sites as agreed between the parties.
4.3 The Supplier will endeavour to deliver the Goods on the Delivery Date; However, the Delivery Date is an estimate only and the Supplier accepts no liability to the Customer or to any other person if it is unable to deliver Goods within an estimated delivery time.
The Supplier shall not be liable for any loss or damage (whether direct or indirect) caused by any failure to deliver, supply or complete either in whole or in part where the failure is due to an event beyond the reasonable control of the Supplier.
4.4 The Supplier reserves the right to charge the Customer reasonable storage and/or waiting costs if the Goods are unable to be delivered, for any reason not caused by the Supplier, to the Customer on the Delivery Date.
4.5 The Supplier’s obligations to supply Goods shall be deemed to be completed and the Goods deemed to be delivered when:
a) in the case of Goods sold for delivery and installation – when the Goods are assembled in position and connected to the power and other services specified;
b) in the case of Goods sold for delivery – when the Goods reach the specified destination (unloading of Goods shall be the Customer’s responsibility unless otherwise expressly agreed in writing);
c) in the case of Goods sold for delivery ex works – when the Goods are delivered to the carrier.
4.6 Unless otherwise agreed, spare parts will be delivered by air freight at the Customer’s expense.
4.7 Either party may suspend its obligations (other than an obligation to pay money) under the contract where the failure is caused by force majeure, including any act or omission on the part of the other party, or by any act of God, war, lightning, fire, earthquake, storm, flood, explosion, any embargoes, restraint orders or restrictions imposed directly or indirectly by any government or governmental authority, agency or department, unavailability or delay in availability of equipment, materials or transport, labour dispute and any other case whether of the kind enumerated or otherwise which is not within the control of the party claiming the benefit of this clause. Where the force majeure event continues for more than 60 days either party may, by written notice to the other, terminate this contract.
4.8 Where the Supplier is to install, start up or commission the Goods, the Customer will provide suitable access to and possession of the premises where the Goods are to be installed, started up and commissioned, and shall provide suitable facilities at the premises in order to receive the Goods.
4.9 The Customer will bear the cost of:
a) any work to be carried out by third parties including, without limitation, builders, masons, joiners, pipefitters and electricians;
b) any alterations to existing equipment or premises for use with the Goods; and
c) all fuels, services and other facilities required for the installation starting up and commissioning of the Goods.
4.10 If the agreement requires the Supplier to install the Goods, the Supplier agrees to perform the installation (Installation) in accordance with the agreement
(a) the Supplier agrees to:
(i) make all reasonable efforts to perform the Installation at the location nominated by the Customer (Installation Location) at the time set out in the agreement or otherwise quoted by the Supplier, noting that such time is an estimate only; and
(ii) notify the Customer as soon as reasonably practicable of any anticipated material delays in carrying out the Installation. Unless the agreement provides otherwise, the Supplier is not responsible for tiling, grouting, plumbing, painting, gas or electrical connections or making good any works affected by other contractors.
(c) The Customer must:
(i) notify the Supplier in writing of any restrictions on access to the Installation Location or hazards at or adjacent to the Installation Location and otherwise provide all required access to the Supplier to perform the Installation;
(ii) provide in a timely manner any deliverables, plant, equipment or materials identified in the agreement as being required to be supplied by the Customer
(iii) notify the Supplier in writing within seven days after completion of the Installation of any alleged defect or deficiency in the performance of the Installation;
(iv) provide or arrange all services reasonably necessary for Installation
5 Acceptance of Goods
5.1 On delivery of the Goods to the Customer, the Customer must immediately inspect the Goods for its quality and condition.
5.2 Subject to clause 2, the Customer will be deemed to have:
(a) accepted the Goods received from the Supplier; and
(b) acknowledged that it is satisfied as to the condition and quality of the Goods, unless it gives the Supplier written notice setting out the nature of any defects within 2 Business Days of delivery of the Goods to the Customer.
6 Price and payment
6.1 The price of the Goods and/or services will be as set out in the Accepted Order and/or Invoice.
6.2 The Deposit (if applicable) stated in the Accepted Order and/or Invoice must be paid to the Supplier by way of deposit on the making of any order for Goods by the Customer. The Deposit is non-refundable.
6.3 The Supplier will invoice the Customer for Goods supplied in accordance with these Terms and Conditions prior to dispatch of the Goods (less payment of the Deposit, if applicable, paid in accordance with clause 6.2).
6.4 Invoices are payable on the terms set out in the Invoice.
6.5 The Customer acknowledges that pre- payment of an Invoice may be required to cover the Supplier’s material and labour costs. No pre- payments are refundable unless agreed in an Accepted Order.
6.6 The price of the Goods quoted in the Accepted Order and/or Invoice is exclusive of GST. In addition to the price payable for the Goods, where required by law, the Customer must pay to the Supplier, in accordance with a valid tax invoice issued by the Supplier, the GST payable in respect of the supply of the Goods.
6.7 The Supplier may (in its sole discretion) require the price of the Goods and other costs payable by the Customer to the Supplier under this Agreement with respect to the supply of Goods to be paid by the Customer by way of direct debit in which case the Customer must provide its nominated account details and sign all documents and do all things necessary to allow for the Supplier to direct debit all payments and other monies owing from time to time under this Agreement.
6.8 All payments made under this Agreement must be paid to the Supplier’s bank account as set out in the Invoice.
6.9 The Customer must pay all amounts due to the Supplier (whether under these Terms and Conditions or otherwise):
(a) without set-off, deductions counter-claims or conditions; and
(b) in available cleared funds to the Supplier’s nominate bank account.
6.10 If the Customer owes any amount to the Supplier (whether under these Terms and Conditions or otherwise), the Supplier may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(a) withhold all supplies of Goods until that amount has been paid in full; or
(b) set-off that amount against any amount owing by the Supplier to the Customer.
6.11 If an amount due under these Terms and Conditions is paid after the due date the Customer must pay the Supplier, in addition to the overdue amount:
(a) interest at the Default Rate calculated based on a 365-day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
(b) all costs and expenses incurred by the Supplier in collecting the overdue amount.
6.12 The Customer's obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Goods.
7 Title and risk
7.1 Risk in the Goods passes to the Customer upon dispatch of the Goods from the Supplier’s premises by the Supplier or its agent or representatives.
7.2 Until the Supplier has received payment in full for Goods supplied by the Supplier under this Agreement:
(a) title to the Goods shall remain with the Supplier;
(b) until payment in full is received under this Agreement, the Customer
holds the Goods as bailee for the Supplier; and
(c) the Goods shall, so far as practicable, be kept separate from other goods of the Customer, so as to be readily identifiable as the property of the Supplier.
7.3 Upon default of the Customer of the due performance or observance of any other obligation under these Terms and Conditions, including an Insolvency Event, the Supplier may by notice in writing to the Customer enter upon the Customer’s premises, the Delivery Address or any other Customer site to remove any of the Goods to which the Supplier has retained title and for this purpose the Customer shall afford the Supplier all reasonable assistance to locate and take possession of the Goods.
7.4 The Customer acknowledges that by virtue of clause 7.2, the Supplier has or will have a Security Interest in the Goods, the proceeds from the sale of the Goods and the proceeds of any insurance policy for the purposes of the PPSA.
7.5 The Customer also grants the Supplier a security interest in all of the Customer’s present and after-acquired property and any proceeds until the Supplier is paid in full under this Agreement.
7.6 The Customer acknowledges that the Supplier may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. The Customer agrees to do all things reasonably necessary to assist the Supplier to achieve perfection of this Security Interest under the PPSA.
7.7 The Customer and the Supplier agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
(a) section 117 (obligations secured by interests in personal property and land);
(b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(f) paragraph 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 142 (redemption of collateral); and
(i) section 143 (reinstatement of security agreement).
7.8 The Customer waives its right to receive a verification statement under section 157 of the PPSA.
7.9 In addition to any rights the Supplier may have under Chapter 4 of the PPS Act, the Supplier may, at any time, demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Goods may be located in order to search for and remove the Goods without committing a trespass, even though they may be attached or annexed to other Goods or land not the property of the Supplier, and for this purpose the Customer irrevocably licenses the Supplier to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Supplier from and against all loss suffered or incurred by the Supplier as a result of exercising its rights under this clause except to the extent that the Loss is caused directly by the Supplier gross negligence or fraud. If there is any inconsistency between the Supplier’s rights under this clause 9.4(e) and its rights under Chapter 4 of the PPS Act, this clause 9.4(e) prevails.
i) the Customer acknowledges and warrants that the Supplier has a security interest (for the purposes of the PPS Act) in the Goods and any proceeds described in clause 9.4(d); and
ii) the security interest arising under this clause attaches 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 this clause 9 attaches at any later time.
7.10 The Customer warrants that it does not intend to use the Goods predominantly for personal, domestic or household purposes.
7.11 The Customer must, at its own cost, insure and keep insured the Goods against such risks as a prudent owner of the Goods would insure at their full cost price, with a reputable insurance company.
7.12 – Intellectual Property
7.12 All Intellectual Property in the Supplier’s Materials is owned by or licensed to, and is protected under Australian and international law. The Customer must not use any such Intellectual Property (or any part thereof) or reproduce, adapt, modify, publish or disclose to any third party such Supplier (or any part thereof), except for:
(a) use of the Supplier Materials for the purpose for which they are supplied;
(b) use permitted in accordance with these Contract Terms;
(c) use with the prior written consent of the Supplier; or
(d) as otherwise permitted by law
7.13. Supplier Materials
7.13 All Supplier Materials, except for the Suppliers’ standard descriptive specifications, operating instructions, layout and foundation drawings:
(a) remain the property of the Supplier at all times; and
(b) must be returned to the Supplier on completion of the contract or on request.
(c) cannot be used / loaned or utilised by any third party without the written consent of the Supplier.
8 Consignment
8.1 Where the Accepted Order indicates that the Goods will be supplied on a consignment basis, this clause 8 shall apply.
8.2 As soon as practicable and in any event within 10 Business Days of the date of sale of any Goods on consignment the Customer must remit the price to the Supplier for such Goods sold.
8.3 Without limiting clause 7, until the Supplier has received payment in full for Goods supplied by the Supplier under this Agreement:
(a) title to the Goods shall remain with the Supplier;
(b) the Customer shall be at liberty to resell the Goods in the ordinary course of business unless it fails to make any payment to the Supplier when it becomes due, defaults in the due performance or observance of any other obligation under these terms and conditions or suffers an Insolvency Event;
(c) the Customer indemnifies and holds the Supplier harmless to the full extent permitted by law for any Loss whatsoever arising in connection with the possession, use or disposal of the Goods by the Customer or of repossession or attempted repossession by the Supplier; and
(d) the proceeds of sale of each item of Goods must be held by the Customer in a separate account on trust for the Supplier and the Customer is under a duty to account to the Supplier for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay the Supplier for the Goods.
8.4 Until the Goods are sold, the Customer must:
(a) keep the Goods safe and free from deterioration, destruction, loss or harm;
(b) clearly designate the Goods as the property of the Supplier, store them in such a way that they are clearly identified as the property of the Supplier and keep full and complete records of their physical location and the Supplier’s ownership; and
(c) the Customer must permit the Supplier to inspect the Goods or any such records at any time on reasonable prior notice.
The Customer must not:
(a) remove, deface or cover up any marks of identification or ownership from the Goods;
(b) misrepresent who is the owner of the Goods; or
(c) in any way assign, charge, lease or otherwise deal with, or create a Security Interest over, the Goods except for the purposes of, and consistent with, this Agreement.
8.6 The Customer must provide the Supplier with a monthly statement by the 15th day of the following month details of all Goods supplied on consignment to the Customer including details of all purchasers, quantities and prices for such Goods sold during the preceding month.
9. Insurance
9.1 Upon risk in the Goods passing to the Customer and until all monies owing under this Agreement by the Customer are paid to the Supplier, the Customer must procure the following insurance policies (Policies):
(a) public liability coverage up to $20milion in any one occurrence; and
(b) Goods replacement coverage up to the replacement value of the Goods.
9.2 The Policies must list the Supplier as an interested party and the Customer must provide the Supplier with a valid certificate of currency on or before the Delivery Date.
9.3 The Customer must not do anything that may provide grounds for an insurer to refuse payment of a claim under the Policies or prejudice the Supplier’s rights under the Policies.
9.4 The Customer irrevocably authorises the Supplier:
(a) to receive all money payable in relation to the insurance referred to in this clause 8 or payable by any person in respect of damage to, or loss of, the Goods. For this purpose, the Customer appoints the Supplier as its attorney to make, recover and/or compromise in the Customer’s name any claim under that insurance or against any person; and
(b) to appropriate any insurance money or other amount received at the Supplier’s option, towards repair and/or replacement of the Goods or towards any money payable by the Customer under this Agreement.
10 Customer obligations
The Customer warrants and agrees that at the date of this Agreement and until all monies owing under this Agreement by the Customer are paid to the Supplier:
(a) until the Supplier has received payment in full for Goods supplied by the Supplier under this Agreement:
(i) the Goods will only be stored at the Delivery Address or such other Customer sites approved by and notified in writing to the Supplier;
(ii) the Customer must keep the Supplier fully informed of the location of the Goods at all times;
(iii) the Goods will be secured and adequately protected against theft and vandalism;
(iv) the Customer will maintain the Goods in good repair and working order using only parts and labour approved by the Supplier; and
(v) the Customer has obtained and will maintain and comply with all Approvals in connection with the Goods;
(b) the Customer has the right, power, authority and entitlement to execute this Agreement and perform the Customer’s obligations under this Agreement;
(c) the Customer is not subject to any actual, threatened or pending investigation, action, suit or proceedings by or before any Authority;
(d) any information provided by the Customer to the Supplier prior to the execution of this Agreement was, and remains at the date of the execution of this Agreement, true and correct; and
(e) the Customer is familiar with the risks associated with the Goods.
10.2 The Customer will provide immediate written notice to the Supplier if the Customer becomes aware that a representation or warranty given by the Customer under this clause 10 has become untrue or misleading.
10.3 The Customer acknowledges that the Supplier has entered into this Agreement with the Customer in reliance on the representations and warranties set out in this clause 10.
11 Returns
11.1 The Supplier may, but is not obliged, to accept return of Goods. If accepted, a restocking fee shall be applicable for the cancellation of any order or the return of any Goods for:
(a) 30% on the value of the order or the sale price of the Goods, if the Goods are returned to the Supplier in saleable condition, are unused and are in their original packaging (including pallet)
11.2 Other costs in excess to the restocking fee policies mentioned above that apply include:
(a) Repacking costs
(b) Delivery costs, where the Customer has requested the Supplier to collect the Goods on behalf the Customer.
(c) Pre-Preparation of Goods Such as pre- assembly, unpacking of Goods, disassembly into components and any third party contractor costs incurred.
11.3 The following Orders may not be cancelled under any circumstances
(a) Unpacked and/or not in the original manufacturer packaging
(b) Goods that have been used in any form
(c) Non-Stock items/Special Order items
(d) Custom manufactured Goods
(e) Pre-Preparation of Goods such where the Customer has requested services to uncrate Goods, disassemble into components and/or any changes to the Goods from their original state as supplied by the Supplier/manufacturer
(f) After 7 days of invoice date
11.4 The parties agree that the fee constitutes a genuine pre-estimate of the Supplier’s loss arising from the cancellation or return of Goods.
11.5 Goods will not be accepted for return without prior written authorisation from the Supplier’s representative. Where the Customer delivers Goods for return to the Supplier and, if the Supplier accepts the return of those Goods, the Customer will be given credit to the value of the sale price of those Goods less any applicable fees and charges (subject to clauses 11.1, 11.2, 11.3) if the Goods are returned with-in 7 days of invoice date. Such credit will endure for a maximum of twelve (12) months in Store from the date of first sale to the Customer of the returned Goods
11.6 Where the Supplier rejects the claim for credit for Goods returned, and advises the Customer accordingly, the Customer must make arrangements to collect the Goods at the
Customer’s expense within fourteen (14) days of notification of the claim being rejected. The Supplier will, unless requested to return the Goods at the Customer’s expense within twenty- eight (28) days of notification of the claim being rejected, dispose of the items on behalf of the Customer.
12 Warranties and liability
12.1 The Goods may come with guarantees which cannot be excluded pursuant to the Australian Consumer Law.
12.2 The Supplier makes no express or implied warranties under these Terms and Conditions in relation to the Goods.
12.3 To the maximum extent permitted by law, the Supplier will not be liable for indirect, consequential, special, punitive or exemplary damages including but not limited to loss of profits, loss of business, loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with this Agreement or the Goods.
12.4 To the maximum extent permitted by law, the Supplier limits its liability for breach of these Terms and Conditions in relation to any particular supply of Goods to the price of the Goods.
12.5 To the maximum extent permitted under the Australian Consumer Law, the Supplier’s liability for breach of a Consumer Guarantee, if the Consumer Guarantees apply at law, is limited to any one or more of the following, at the Supplier’s election:
(a) In the case of Goods, to:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired.
(b) In the case of services, to:
i) the supplying of the services again; or
ii) the payment of the cost of having the services supplied again.
12.6 The liability of the Supplier in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 12.1, 12.2, 12.3, 12.4 and 12.5 if:
a) the Goods or services supplied are Goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
b) it is not 'fair or reasonable' for the Supplier to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
c) the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
19.4 Any express warranty offered by the Supplier with respect to the Goods is offered subject to the terms and conditions set out in such warranty, as published on the Supplier’s website from time to time.
12.7 The Supplier’s liability under this Agreement is reduced to the extent that the Customer contributed to any Loss or Claim.
12.8 This clause 11 continues to bind the parties after this Agreement is terminated.
13 Release and indemnity
13.1 The Customer agrees to use and possess any Goods at its own risk. The Customer agrees that the Supplier bears no responsibility or liability for any Loss to any of the Customer’s property (including the Goods).
13.2 To the fullest extent permitted by law the Customer releases and discharges the Supplier and its agents and employees from:
(a) all Claims and demands on the Supplier; and
(b) any Loss whatsoever and whenever caused to the Customer or its agents or employees or any third party whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial Loss or otherwise,
arising directly or indirectly from or incidental to a breakdown of, or defect in any Goods or any accident to or involving any or their use, operation, repair, maintenance or storage (whether occasioned by the Supplier’s negligence or otherwise) or which may otherwise be suffered or sustained in, upon or near any Goods.
13.3 The Customer indemnifies and holds the Supplier harmless to the full extent permitted by law for any Loss whatsoever arising in connection with the supply of and operation of the Goods by the Customer, including any breach of this Agreement.
13.4 Prior to the Supplier’s acceptance of any order, the Customer must inform the Supplier of all its requirements including any statutory or regulatory requirements relating to the installation and end use of Goods in the place of intended use. If the Customer fails to inform the Supplier of such requirements, the Customer shall be responsible for, and shall indemnify the Supplier against, any action, claim, demand, loss, damage, cost or expense associated with any failure to meet those requirements.
14 Default and termination
14.1 Each of the following events is an Event of Default, namely:
(a) if the Customer fails to pay any amount due and payable under this agreement on the due date for payment and such failure continues for more than 5 Business Days;
(b) the Customer fails to perform or observe any of the covenants or provisions of this Agreement and (if capable of remedy) such default continues for more than 10 Business Days after notice from the Supplier requiring the Customer to remedy the breach;
(c) the Customer relocates, sells or closes its business without written notice to the Supplier;
(d) the Customer suffers an Insolvency Event;
(e) where the Customer is a partnership it is dissolved, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(f) the Customer being a natural person dies.
14.2 If an Event of Default occurs the Supplier may at its option:
(a) suspend or withhold supply under this Agreement;
(b) by proceeding by appropriate court action, either at law or in equity, enforce performance by of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and / or
(c) terminate this Agreement and, the Customer’s right to possession of the Goods by notice in writing to the Customer. Upon service of such notice all of the Customer’s rights to possess or use the Goods will terminate and the Supplier may, directly or by its agent, take possession of the Goods. Any damages reasonably occasioned by the Supplier taking possession are expressly waived by the Customer.
14.3 Where the Supplier considers that an Event of Default constitutes a breach of a fundamental term of this Agreement, in addition to any other rights, the Supplier may give written notice to the Customer confirming that the Agreement has been repudiated by the Customer and the Supplier may pursue all remedies available to it in connection with such repudiation.
14.4 Without prejudice to the Supplier’s right to pursue the Customer for Loss arising from a breach of this Agreement, upon the expiry of this Agreement or early termination under this clause 14 the Customer must immediately pay the Supplier all amounts owing under this Agreement.
15 Force Majeure
15.1 The Supplier will not be liable for any Loss incurred as a result of delay or failure to observe any of these terms and conditions due to an event of Force Majeure. The Supplier’s obligations under these Terms and Conditions will be suspended and will resume as soon as the cause of the Force Majeure has ceased to have effect.
16 Privacy
16.1 The Supplier may provide details of this Agreement to a credit reporting agency for the purpose of:
(a) obtaining a credit report; and
(b) allowing the credit agency to maintain a file, in respect of the Customer.
16.2 The Supplier will endeavour to take reasonable commercial steps to protect all personal information provided by the Customer in accordance with the Australian Privacy Principles of the Privacy Act 1998 (Cth).
17 Third Party Rights
17.1 The parties acknowledge and agree that some or all of the Goods may be owned by a third party or under finance from a third party (Third Party), giving that Third Party an interest in the relevant Goods (Third Party Rights).
17.2 Where a Third Party’s Interest is valid and subsisting, the Customer acknowledges that:
(a) a person other than the Supplier may be the legal owner of the Goods;
(b) the Third Party may enforce the terms of this Agreement, as if it were the Supplier;
(c) the Third Party shall at all times be entitled to register its interest on the PPSR, if applicable; and
(d) nothing in this Agreement shall limit, reduce, vary or otherwise qualify the rights of the Third Party against the Supplier or the Goods.
18 General
18.1 This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
18.2 The Agreement operates as a ‘standing agreement’ and each Accepted Order and/or Invoice issued shall constitute a separate contract for supply of the Goods between the parties and the Supplier may enforce its rights under this Agreement against an Accepted Order or Invoice, multiple Accepted Orders, or Invoices or the Agreement as a whole.
18.3 Except as required by law, the Customer must not disclose to any person without the Supplier’s prior written consent the existence of, or details in, the Agreement or any other information the Supplier gives the Customer.
18.4 Unless the parties enter into a new agreement, these Terms and Conditions will govern the future supply of Goods to the Customer and each order constitutes a separate contract for the sale of the Goods and the breach of any one such contract will be deemed a breach of the Agreement as a whole and may be enforced jointly or severally at the Supplier’s discretion.
18.5 Except as required by law, the Customer must not disclose to any person without the Supplier’s prior written consent the existence of, or details in, the Agreement or any other information the Supplier gives the Customer.
18.6 The Customer may not, without the prior written consent of the Supplier, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
18.7 the Supplier may, without the prior written consent of the Customer, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
18.8 If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
18.9 All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
18.10 Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
18.11 Time is of the essence in respect of all amounts payable pursuant to these Terms and Conditions.
18.12 The Agreement is governed by and is to be construed in accordance with the laws applicable in the state of New South Wales.
