Polyaire Terms & Conditions of Trade
1. DEFINITIONS
1.1 “Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
1.2 “Business Days” means any day that is not a Saturday, Sunday or public holiday in South Australia.
1.3 “Buyer” shall mean the purchaser of the Goods from the Seller and includes any servants, agents, or contractors acting on behalf of the Buyer where the context permits.
1.4 “Conditions” means these terms and conditions of trade of the Seller.
1.5 “Consequential Loss” includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect consequential loss.
1.6 “Consumer” means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
1.7 “Consumer Guarantees” means the consumer guarantees under the Australian Consumer Law.
1.8 “Contract” means a contract for the supply of the Goods and/or Services in accordance with these Conditions, as evidenced by the acceptance of any Order, Quotation or written request for Goods and/or Services in accordance with clause 3 and includes, where the context permits, any Security Agreement.
1.9 “Detention and Demurrage Charge” means any detention and/or demurrage fee charged to the Seller by any third party (including transport and freight providers) as a result of the Buyer’s failure to collect any Goods from the premises or care of such third party within the timeframe specified by the Seller to the Buyer.
1.10 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.11 “Goods” shall mean the goods supplied by the Seller to the Buyer from time to time including but not limited to any air conditioner/s, air conditioning products and/or air conditioning related products (and where the context so permits shall include any supply of Services) as outlined in any Quotation, Order, invoice, work authorization or any other request made in writing by the Buyer to the Seller for the supply of Goods.
1.12 “GST” means Goods and Services Tax pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.13 “Implied Terms” means any guarantees, conditions, warranties or other terms implied by any Australian Commonwealth, State or Territory laws (including the Australian Consumer Law), or the laws of any other jurisdiction.
1.14 “Order” means any order issued by the Buyer to the Seller for Goods and/or Services.
1.15 “Payment Obligations” means the payment terms pursuant to these Conditions or any Security Agreement between the Buyer and the Seller (as applicable).
1.16 “Polyaire Warranties” means the warranties provided by the Seller for Goods manufactured by them as outlined in clause 11.
1.17 “PPSA” means the Personal Property Securities Act 2009.
1.18 “Price” shall mean the cost of the Goods or Services as determined pursuant to clause 5.
1.19 “Quotation” means a quotation supplied by the Seller to the Buyer in respect of the Price and/or delivery of Goods and/or Services.
1.20 “Security Agreement” means any agreement between the Buyer and Seller under which the Seller grants credit terms to the Buyer.
1.21 “Seller” shall mean Polyaire Pty Ltd ACN 007 673 690 and includes its successors and assigns.
1.22 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods).
1.23 “Warranty Period” means the warranty period offered by the Seller for the Polyaire Warranties being:
1.23.1 For flexible ducting – Ten (10) years for domestic use and one (1) year for commercial use;
1.23.2 For plastic components – Ten (10) years for domestic use and one (1) year for commercial use;
1.23.3 For zone motors and controls – Five (5) years for domestic use and one (1) year for commercial use; and
1.23.4 For Derby branded reverse cycle air-conditioning units – Five (5) years for domestic use and one (1) year for commercial use.
2. GENERAL
2.1 These Conditions apply to all Goods and Services supplied and provided by the Seller as from the acceptance date in accordance with clause 3 and the Buyer is deemed to have read and agreed to these Conditions by the placing of any Order.
2.2 These Conditions shall prevail over all inconsistencies in any Order and Quotation, unless the Seller expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 The Seller may vary, add to or substitute these Conditions from time to time and any such variations to these Conditions will have effect from the date of publication of such change to the Seller’s customers. The Buyer and the Seller retain any rights and remedies available to them in relation to any occurrence under these Conditions prior to the date of any variations to these Conditions.
2.4 The Buyer will, as soon as reasonably practicable but no more than seven (7) days following a Material Change, notify the Seller of any Material Change in relation to the Buyer. In this clause 2.4, a Material Change in relation to the Buyer includes a change in or to:
2.4.1 the Buyer’s name or any other corporate identifier of the Buyer (including Australian Business Number and Australian Company Number);
2.4.2 the contact details of the Buyer for the purposes of these Conditions;
2.4.3 the direct or indirect beneficial ownership or effective control of the Buyer (whether through transfer of shares, change in directorship or by any other means); or
2.4.4 any other detail relating to the Buyer which is material to the Seller’s ability to perform its obligations under these Conditions.
3. ACCEPTANCE OF THE CONTRACT
3.1 The Buyer is deemed to have accepted and agreed to these Conditions by:
3.1.1 signing and returning any acceptance contained in a Quotation to the Seller (or otherwise indicating the Buyer’s acceptance of a Quotation in writing);
3.1.2 making any payment or part-payment to the Seller for the Goods and/or Services;
3.1.3 instructing the Seller verbally or in writing to commence or continue providing the Goods and/or Services; or
3.1.4 submitting any Order (whether via an online platform of the Seller or by telephone or email).
3.2 For the avoidance of doubt, an Order does not become binding on the Seller unless it has been accepted in writing by the Seller or the Goods being the subject of the Order have been supplied.
3.3 Where the Buyer consists of more than one party or entity, the Buyers’ liability under these Conditions shall be joint and several.
3.4 Upon entering into a Contract these Conditions (as at the date of the Contract) are irrevocable and can only be rescinded in accordance with these Conditions or with the written consent of both parties.
4. QUOTATIONS
4.1 All Quotations are valid for twenty-eight (28) days from the date of the Quotation.
4.2 If the Buyer does not make an Order for Goods of a kind detailed in a Quotation within the twenty eight (28) days from the date of that Quotation then the Seller reserves the right to vary the Quotation or reject any later Order in respect of the Quotation.
5. PRICE, GST AND PAYMENT
5.1 All amounts payable to the Seller by the Buyer must be paid in Australian dollars without set-off of any amounts that may be due from the Seller on or before the due date for payment.
5.2 Unless otherwise stated any prices quoted by the Supplier are exclusive of GST.
5.3 GST is to be applied to all provision of Goods and Services made by the Seller and the amount payable by the Buyer for such Goods and/or Services will be increased by a percentage equal to the prevailing of GST rate at the time of delivery of the Goods and/or Services.
5.4 The Price shall (subject to clause 5.6) be:
5.4.1 the Seller’s price set out in a Quotation which shall be binding upon the Seller provided that the Buyer accepts the Seller’s Quotation in accordance with clauses 3 and 4; or
5.4.2 the price as agreed between the Seller and the Buyer in writing (provided that the Buyer makes an Order in relation to the relevant Goods within twenty-eight (28) days of such agreement); or
5.4.3 where clauses 5.4.1 or 5.4.2 do not apply, the price will be as notified to and agreed by the Buyer at the Seller’s point of sale.
5.5 The Buyer acknowledges that the Seller’s price list is subject to change from time to time upon the Seller giving reasonable notice to the Buyer in writing or by publishing the price list on the Seller’s website. Any change to a price list will not alter the Price of an accepted Order.
5.6 The Seller reserves the right to charge the Buyer for costs reasonably incurred resulting from the Buyer varying its instructions, correcting any errors or omissions or requiring Goods or Services urgently. The Seller also reserves the right to charge for any additional Goods that may be requested by the Buyer.
5.7 Time for payment for the Goods and/or Services shall be of the essence and will be stated on any invoice or Quotation. If no time is stated then payment shall be due on delivery of the Goods or provision of the Services.
5.8 At the Seller’s sole and absolute discretion, payment for approved Buyers will be offered on credit terms subject to any Security Agreement entered into between the parties. To the extent of any inconsistency between these Conditions and Security Agreement, the Security Agreement shall prevail.
5.9 Payment is to be made by the Buyer to the Seller by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed between the Buyer and the Seller and payment shall not be taken to occur until all cheques tendered or electronic funds transfer have been received and cleared in full.
5.10 For ongoing Contracts, the Seller reserves the right to update any pricing subject to providing the Buyer twenty-eight (28) days written notice of such change and allowing the Buyer the opportunity to cancel any Goods or Services not already paid for if the new pricing is not accepted.
5.11 Where the Seller is required to pay any Detention or Demurrage Charges to third parties, the Seller may on-charge such amounts to the Buyer. Such charges (if any) are in addition to, and not included in, any Price quoted for the relevant Goods.
5.12 The Buyer shall be liable for all fees (including an administration fee in an amount of $25.00 as varied from time to time by the seller and advised to the Buyer in writing) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured as a result of any act or omission of the Buyer.
6. DEFAULT AND CONSEQUENCES OF DEFAULT
6.1 If the Buyer fails to pay an amount payable to the Seller in accordance with
these Conditions (Overdue Amount):
6.1.1 the Buyer indemnifies the Seller against all reasonable costs or charges incurred by the Seller in recovering or attempting to recover any Overdue Amounts , including any costs incurred by the Seller to enforce its rights under the PPSA;
6.1.2 the Seller may charge interest at a rate of 1.00% per calendar month on all Overdue Amounts owing to it. Such interest will accrue daily and is payable on demand;
provided that the Seller may not exercise any of its rights under this clause 6 during any period in which the relevant Overdue Amount is the subject of dispute resolution proceedings pursuant to clause 19
6.2 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in material breach of any obligation under these Conditions (including those relating to payment), the Seller may suspend or terminate the supply of Goods and/or Services to the Buyer until such breach is remedied. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
7. DELIVERY OF GOODS / SERVICES
7.1 Delivery of the Goods shall be made to the address provided by the Buyer. Subject to clause 7.5, the Buyer shall make all arrangements necessary to take delivery of the Goods at the time notified by the Seller. Where no address is specified, or when requested by the Buyer, delivery of the Goods shall be made to the Buyer at the Seller’s address.
7.2 If the Buyer requests a change to any previously agreed address for delivery of any Goods, the acceptance of such request by the Seller may be conditional upon the Buyer accepting an updated Price or Quotation from the Seller for any increase in delivery costs associated with the requested change in address.
7.3 The Seller may at its option deliver Goods by portion unless otherwise agreed in writing by the parties. When the Seller delivers by portion, the Seller may issue invoices to the Buyer pro rata with such deliveries.
7.4 Delivery of the Goods to a third party carrier named by the Buyer is deemed to be a delivery of the Goods to the Buyer. The costs of the third party carrier will be at the Buyer’s own expense.
7.5 The Seller is authorised to deliver any Goods at the address provided to the Seller for that purpose and the Seller shall be taken to have successfully delivered the Goods at the specified address if the Seller obtains a receipt, proof of delivery or signed delivery docket (Confirmation) from any person purporting to be authorised to provide such Confirmation on behalf of the Buyer or the intended recipient of the Goods. Where the address for delivery is unattended at the time of delivery by the Seller:
7.5.1 if instructed by the Buyer, the Seller may deliver Goods to such unattended site at the Buyer’s risk; or
7.5.2 if the Seller is not instructed to deliver the Goods to the unattended site, the Seller will re-stock the undelivered Goods and the Buyer will be liable for the Seller’s reasonable costs in re-stocking and re- delivering the undelivered Goods to the Buyer.
7.6 The Buyer is responsible to insure the Goods from the time that they are delivered to them.
7.7 Subject to clause 7.8, the Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be less than the quantity purchased provided that:
7.7.1 such discrepancy in quantity shall not exceed 5% of the total number of Goods ordered by the Buyer and shall be otherwise immaterial having regard to the Goods ordered; and
7.7.2 the Price shall be adjusted pro rata to the discrepancy.
7.8 The Buyer must notify the Seller as soon as reasonably practicable if the total number of Goods delivered by the Seller is in excess of the number ordered by the Buyer. The Buyer may retain any excess Goods at the additional Price payable for such Goods or return them. If any excess Goods received by the Buyer are not returned to the Seller within seven (7) days of delivery, the Buyer is deemed to have accepted the excess Goods at the Price for such Goods applicable as at the date of delivery.
7.9 The failure of the Seller to deliver the Goods shall not entitle either party to treat a Contract as repudiated unless such failure to deliver exceeds ninety (90) days of any proposed timeframe for delivery.
7.10 Timeframes for delivery are estimates only. The Seller shall not be liable for any loss or damage , including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control.
8. SHORTAGES AND RETURNS
8.1 The Seller will endeavour to ensure that the Goods conform with descriptions contained in any drawings, catalogues, literature and advertising materials provided by the Seller in relation to the Goods.
8.2 The Buyer shall inspect the Goods upon delivery and will, within 3 Business Days of delivery, notify the Seller of any short deliveries or any failure to fulfill any Quotation or Order.
8.3 The Buyer will, within a reasonable time following delivery, grant the Seller access to any delivered Goods in order to inspect such Goods for any alleged defects, short deliveries or other complaint.
8.4 Where the Buyer fails to notify the Seller within the period specified in clause 8.2 or uses the Goods in the Buyer’s business during that period, then the Goods shall be deemed to be in compliance with any Order or Quotation relating to such Goods. Nothing in this clause limits a claim the Buyer may have under the warranty for any Goods.
8.5 Except where any Goods are returned due to defects or a failure on behalf of the Seller:
8.5.1 returns will be accepted only by prior agreement with the Seller and charges, including but not limited to re-stocking fees, may apply. These fees will be advised to the Buyer on a request to return Goods; and
8.5.2 the Seller will be under no obligation to accept any return of Goods where such Goods are not in a condition to be re-sold by the Seller as “brand new” due to any act or omission of the Buyer.
8.6 Where any Goods are manufactured by the Seller to the specifications provided by the Buyer and cannot reasonably be re-sold in the ordinary course of the Seller’s business (Special Order Goods):
8.6.1 such Special Order Goods shall not be eligible for return by the Buyer in any circumstance except where the manufacture of the Special Order Goods is materially inconsistent with the specifications provided by the Buyer; and
8.6.2 the Buyer warrants that any specifications provided to the Seller for the purpose of manufacturing any Special Order Goods shall be accurate and fit for the intended purpose of the Special Order Goods, and the Seller shall not be liable for any damage or loss of the Buyer arising from any inaccuracy or error in the specifications provided by the Buyer.
8.7 The Seller reserves the right to supply Goods which do not conform with descriptions referred to in clause 8.1 or the Buyer’s order for the Goods provided that such non conformity is not material and does not affect the suitability or purpose of the Goods.
8.8 Except where the Australian Consumer Law applies, any costs associated with the return of Goods for the purpose of a warranty claim shall be the responsibility of the Buyer except where such warranty claim arises due to the default of the Seller.
9. RISK
9.1 Whilst the Seller may retain title in the Goods pursuant to clause 15, all risk for the Goods passes to the Buyer on delivery to the Buyer at the address for delivery specified in any Order (or to its agent or a carrier nominated by the Buyer) or upon the Buyer collecting the Goods from the Seller’s premises.
9.2 If any of the Goods are damaged or destroyed prior to title in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods (but only to the extent necessary to discharge the Buyer’s payment obligations to the Seller under these Conditions).
10. AUSTRALIAN CONSUMER LAW
10.1 Notwithstanding anything in these Conditions to the contrary, where the Buyer purchases Goods as a Consumer:
10.1.1 the Goods are supplied subject to the Consumer Guarantees;
10.1.2 if the Goods fail to meet any Consumer Guarantee, the Buyer will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;
10.1.3 the Buyer may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Buyer under the Australian Consumer Law;
10.1.4 where Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption then, unless the Seller is a manufacturer of the Goods under the Australian Consumer Law, the Seller’s liability for breach of a Consumer Guarantee subject to the Australian Consumer Law is limited at the Seller’s option to repairing or replacing the Goods, supplying equivalent goods or paying the costs of the repair or replacement of the Goods or of acquiring equivalent goods.
10.2 Where the Buyer resupplies Goods to a Consumer and the Goods are not ordinarily acquired for personal, domestic or household use or consumption, the Seller’s liability to the Buyer in connection with any breach of a Consumer Guarantee in respect of the Goods subject to the Australian Consumer Law, is limited to paying to the Buyer an amount equal to the costs of replacing the Goods, supplying equivalent goods or having the Goods repaired, whichever is the lowest amount.
11. POLYAIRE WARRANTIES
11.1 Nothing in this clause 11 affects the Buyer’s rights under the Australian Consumer Law (including as outlined in clause 10). The benefits to the Buyer under the Polyaire Warranties are in addition to the rights and remedies of the Buyer under any Consumer Guarantee (if applicable).
11.2 The Polyaire Warranties only apply for Goods that are manufactured by the Seller and do not apply to Goods that are manufactured by a third party.
11.3 Subject to clauses 11.1 and 11.2, the Seller warrants that the Goods will be free of manufacturing defects.
11.4 The benefit of the Polyaire Warranties apply to the owners (from time to time) of the property in which the Goods are first installed (Owner) for the duration of the Warranty Period.
11.5 The Polyaire Warranties commence on the date of purchase of the Goods and apply for the Warranty Period.
11.6 If, within the Warranty Period, a manufacturing defect is discovered in the Goods or the Goods fail to perform to the Seller’s specifications as a result of some defect in material or workmanship in the Goods (Defect) then the Seller will, at its election, either repair or replace the Goods at the cost of the Seller (excluding costs of de-installation, re-installation and testing including but not limited to labour and travel costs) or refund all or part of the Price paid by the Buyer (which will be pro-rated by the Buyer taking into consideration the number of years since the Buyer originally purchased the Goods). Goods repaired or replaced under the Polyaire Warranties will be warranted for the remainder of the Warranty Period.
11.7 The Polyaire Warranties do not apply to Goods:
11.7.1 installed, repaired or maintained by any person other than a suitably qualified tradesperson; or
11.7.2 subjected to misuse, neglect, negligence, accidental damage or act of God (including but not limited damage caused by fire, flood, infestation by insects, vermin or rodents) during the Warranty Period; or
11.7.3 operated in any way which is materially contrary to any operating or maintenance instructions; or
11.7.4 improperly handled, installed or maintained in a way which is reasonably likely to cause a Defect in the Goods; or
11.7.5 altered or modified prior to or after installation; or
11.7.6 used after any Defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
11.7.7 exposed to any operating circumstances that are reasonably likely to cause material damage (including but not limited to damage caused to external surfaces and refrigeration coils in a corrosive environment); or
11.7.8 removed and reinstalled at another site after first installation of the Goods; or
11.7.9 fitted with any non-genuine spare part or component which is material to the operation or function of the Goods, or which is reasonably likely to cause a Defect in the Goods; or
11.7.10 used by the Buyer in the course of operating a business of hiring of goods similar to, or incorporating, the Goods; or
11.7.11 installed in a mobile application (including but not limited to a caravan or boat); or
11.7.12 damaged as a result of faulty or incorrect wiring, incorrect power supply, voltage fluctuations, over voltage transients, electromagnetic interference, or replaced fuses, improper storage; or
11.7.13 in respect of which any serial number is altered or removed.
11.8 The Polyaire Warranties do not apply to:
11.8.1 faulty or defective design of Goods unless the Seller has designed the Goods; or
11.8.2 fair wear and tear of Goods (including but not limited to fair wear and tear of consumables such as batteries, filters, and air purifiers); or
11.8.3 discolouration of any plastic components.
11.9 In order to make a claim under the Polyaire Warranties, the Owner must notify the Seller in writing in such form approved by the Seller from time to time, and provide all reasonable assistance for the Seller to evaluate the claim.
11.10 The Seller will examine any Goods being the subject of a claim pursuant to clause 11.9 and:
11.10.1 if the Seller is reasonably satisfied that there is a Defect in the Goods falling within the coverage of the Polyaire Warranties, the Seller will take such action to rectify the Defect pursuant to clause 11.6;
11.10.2 if the Seller reasonably considers that there is no Defect in the relevant Goods, or the alleged Defect is not covered by the Polyaire Warranties, the Seller will notify the Owner that its claim under the Polyaire Warranties is rejected.
11.11 . Except where the Consumer Guarantees apply, any costs associated with the return of Goods for the purpose of a warranty claim shall be the responsibility of the Owner except where such warranty claim arises due to the default of the Seller.
11.12 The Seller will not be responsible for:
11.12.1 any loss or damage to the Goods occurring while the Goods are in transit (either on return to the Seller or upon redelivery to the Owner of the original, repaired or replacement Goods), except to the extent that such loss or damage is caused by the Seller; or
11.12.2 any loss or damage caused by any delay assessing the Buyer’s claim where the Seller is acting reasonably; or
11.12.3 any loss or damage caused by any delay repairing or replacing any Goods where the Seller is acting reasonably.
12. ACCESS TO PROPERTY
12.1 The Buyer must grant the Seller access to enter and remain at any property where there are Goods installed for the following purposes:
12.1.1 to inspect the Goods in respect of any claim made by the Buyer under clauses 8, 10 and 11 inclusive; or
12.1.2 to repossess any Goods where the Buyer has defaulted on its Payment Obligations and title has not passed to the Buyer.
12.2 Where Goods are to be installed on a property not owned by the Buyer, the Buyer must use its best efforts to procure the property owner to grant access to the Seller to the location where the Goods are installed for the purposes of clause 12.1,
12.3 The Seller will endeavour to provide the property owner at least 48 hours notice prior to its access to the property for the purpose of clause 12.1.
12.4 The Buyer must ensure that agents and representatives of the Seller have convenient, unobstructed and safe access to all parts of the property reasonably required to conduct anything required by clause 12.1.
13. GENERAL LIMITATION ON LIABILITY
13.1 This clause 13 does not limit the liability of the Seller under the Australian
Consumer Law.
13.2 Subject to the Australian Consumer Law and these Terms and Conditions, the Seller shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Goods unless expressed in writing and any such warranty or representation is limited to its express terms.
13.3 None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
13.4 The Seller’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any Contract is limited at the option of the Seller to repairing or replacing Goods which have been found defective, or paying the cost of repairing or replacing Goods which have been found defective.
13.5 In no circumstance whatsoever shall the Seller be liable to the Buyer or to any third party for any Consequential Loss arising out of the late delivery of Goods or any failure to perform or observe the Seller’s obligations under these Conditions or any Contract or Implied Terms.
14. INTELLECTUAL PROPERTY
14.1 Where the Seller has designed or drawn Goods for the Buyer, then all intellectual property right subsisting in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer to the extent required for the proper use and enjoyment of the Goods as intended.
14.2 Where the Buyer has supplied drawings, the Buyer acknowledges and agrees that is it the owner of such drawings or the intellectual property in such drawings, or it has been granted a license to provide such drawings to the Seller, and the Buyer will indemnify and release the Seller from any and all liability, loss, damage or claim that may be made by the owner of the drawings (or of any intellectual property subsisting in the drawings) if such drawings are provided to the Seller without the owner’s consent or licence.
14.3 Where any designs or specifications have been supplied by the Buyer to the Seller for the manufacture of Goods to the Buyer’s order, then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
14.4 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
15. TITLE TO GOODS AND PPSA
15.1 Title to and property in any Goods will not pass until the Buyer has paid all monies owed to the Seller on account of such Goods and the Buyer has met all other obligations due by the Buyer to the Seller in respect of such Goods. Nothing in this clause prevents the Buyer selling the Goods in the ordinary course of the Buyer’s business.
15.2 Until the Buyer has paid all moneys owed to the Seller in respect of the Goods:
15.2.1 the Buyer must indemnify the Seller against any loss, theft or damage to the Goods arising after delivery to the Buyer;
15.2.2 the Seller retains a purchase money security interest in the Goods and the proceeds of the sale of the Goods under the PPSA;
15.2.3 the relationship of the Buyer to the Seller is a fiduciary in respect of the Goods and accordingly:
(a) the Buyer must store the Goods in such a way that can be recognised as the property of the Seller;
(b) upon any resale of the Goods by the Buyer the Seller will have the right to trace the full proceeds of the sale; and
(c) the Buyer must account to the Seller for such proceeds of sale;
15.2.4 where the Buyer fails to pay the Price in relation to the Goods by the relevant due date, the Seller may demand that the Buyer returns the Goods or any part of them and the Buyer must comply with such demand within a reasonable timeframe, or otherwise pay the Price which is outstanding. Where Goods are returned under this clause. the Seller will refund any amounts paid by the Buyer in relation to any returned Goods – however this amount may be reduced by the Seller (acting reasonably) to reflect any loss in value of the Goods owing to their age, condition or other relevant factor. The Seller may charge a handling fee to the Buyer for the Seller’s reasonable costs of restocking any Goods returned to the Seller under this clause; and
15.2.5 where the Buyer fails to pay the Price in relation to the Goods by the relevant due date and fails to remedy such default within 7 days of being requested to do so in writing by the Seller, the Seller shall have the right to enter without further notice upon the Buyer’s premises or any other premises where the Goods are known to be stored by or on behalf of the Buyer to repossess the Goods and for this purpose the Buyer shall grant reasonable access rights and the Seller shall be entitled to do all things required to secure repossession.
15.3 The Buyer consents to the Seller effecting a registration on the PPSA register (in any manner the Seller deems appropriate) in relation to any security interest arising under or in connection with or contemplated by these Conditions.
15.4 Pursuant to section 157 of the PPSA, the Buyer waives its right to receive notice of a verification statement in relation to any registration by the Seller on the register.
15.5 The Buyer agrees to promptly execute any documents, provide all relevant information, fully cooperate with the Seller and do any other act or thing that the Seller reasonably requires to ensure that the Seller has a perfected security interest in, and has priority over any other security interests in, the Goods, or to enforce the Seller’s rights under the PPSA in respect of the Goods.
15.6 The Buyer agrees that the Seller retains a Security Interest in any Goods (including the Buyer’s proceeds of sale of the Goods) until such Goods are paid for in full by the Buyer.
15.7 The Buyer will not register a financing change statement in respect of the security interest granted in favour of the Seller without the Seller’s prior written consent.
15.8 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these Conditions, the Buyer agrees that the following provisions of the PPSA will not apply to the enforcement of these Conditions: section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Buyer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Seller to give a notice to the Buyer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); section 143 (reinstatement of security agreement); and section 271 (damages against the Seller).
15.9 Notices or documents required or permitted to be given to the Seller or the Buyer for the purposes of the PPSA must be given in accordance with the PPSA.
15.10 The Seller agrees with the Buyer not to disclose information of the kind mentioned in subsection 275(1) of the PPSA except in circumstances required by paragraphs 275(7)(b)-(e).
15.11 The Buyer agrees to reimburse, upon demand, the Seller for all costs and/or expenses incurred or payable by the Seller in relation to registering or maintaining any financing statement, releasing in whole or in part the Seller’s security interest or any other document in respect of any security interest;
15.12 If the Seller receives any notice in relation to the Buyer under section 64 of the PPSA, all outstanding amounts may, at the Seller’s discretion, become immediately due and payable.
15.13 In these Conditions the following words have the respective meanings given to them in the PPSA: commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.
15.14 It is further agreed, without prejudice to the Seller’s rights under the PPSA, that:
15.14.1 the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller, except in the ordinary course of the Buyer’s business;
15.14.2 upon the sale of the Goods to a third party by the Buyer, the legal and equitable title shall pass directly from the Seller to the third party purchaser, and these Conditions and the terms of a Contract will apply until such time as the Buyer has made payment in full to the Seller for the Price.
15.15 Despite anything to the contrary in this clause 15, nothing in this clause 15 shall derogate from the Seller’s obligation under section 111 of the PPSA to enforce any security interest honestly and in a commercially reasonable manner.
16. CANCELLATION
16.1 The Seller may cancel the delivery of Goods at any time before delivery by giving notice to the Buyer by any means. The Seller shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation.
16.2 Except where the Goods are specifically produced or manufactured by the Seller to the Buyer’s design, the Buyer may cancel the supply of Goods at any time before delivery by giving notice to the Seller by any means.
16.3 In the event that the Buyer cancels the supply of Goods, the Buyer shall be liable for the reasonable costs incurred by the Seller in respect of the cancellation, and the Seller may charge a handling fee to the Buyer for the Seller’s reasonable costs of restocking any Goods.
16.4 On any cancellation, the Seller will refund any pre-payments made by the Buyer relating to that order, less any amount the Seller is entitled to retain in respect of clause 16.3.
17. PRIVACY
17.1 The Buyer authorises the Seller to collect, retain, record, use and disclose consumer and/or commercial information about the Buyer, in accordance with the Privacy Act 1988 (Cth), to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Seller including but not limited to a debt collector, financial advisor, accountant, credit check organisation and/or any other individual or organisation which maintains credit references and/or default listings.
17.2 The Buyer also authorises the Seller to make enquiries with respect to the Buyer’s consumer and commercial credit worthiness, to exchange information with other credit providers in respect of previous consumer and commercial defaults of the Buyer and to notify other credit providers of a consumer and/or commercial default by the Buyer.
17.3 For all other privacy matters please refer to the Seller’s Privacy Policy on their website, as may be amended from time to time.
18. DISPLAY STANDS
18.1 Any display stands and associated equipment loaned to the Buyer from the Seller for the purpose of displaying the Goods for resale (“the Equipment”) shall at all times remain the property of the Seller and will be returnable to the Seller upon the Seller providing reasonable written notice to the Buyer.
18.2 In the event that the Equipment is not returned to the Seller in the condition in which it was delivered to the Buyer, the Buyer shall be liable for the Seller’s reasonable costs incurred for the repair or replacement of the Equipment.
18.3 The Buyer acknowledges that the Equipment is to only be utilised for the display of Goods provided by the Seller or any of its associated entities and related bodies corporate.
18.4 The Buyer shall:
18.4.1 keep the Equipment in their own possession and control and shall not at any time assign or licence the benefit of the Equipment to any third party nor be entitled to register any lien over the Equipment;
18.4.2 be fully responsible for the safekeeping of the Equipment and indemnify the Seller for any and all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss theft or damage is attributable to any negligence failure or omission of the Buyer;
18.4.3 not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment, or in any other manner interfere with the Equipment; and
18.4.4 comply with all occupational health and safety laws relating to the Equipment and its operation.
18.5 The Buyer acknowledges and agrees that it loans the Equipment from the Seller at its own risk and the Buyer is responsible for theft or damage to the Equipment whilst on loan from the Seller.
19. DISPUTE RESOLUUTION
19.1 Subject to clause 19.2, the parties must use reasonable endeavours to settle any dispute between the parties arising from the performance of the provisions of these Conditions or a Contract within thirty (30) days of notification of a dispute in writing from one party to the other party.
19.2 The parties agree that the failure of a Buyer to pay an account or invoice issued by the Seller is not a dispute for the purposes of this clause (and so the Seller can take action to recover the debt without complying with clauses 19.1 or 19.3), except where the Buyer claims that the Seller has breached its obligations under this agreement and such breach directly relates to the account or invoice (for example, where the Seller has delivered the wrong Goods). Where an account or invoice is disputed in part, the Buyer must still pay the amount which is not disputed in accordance with the relevant payment terms.
19.3 A party must not commence arbitration or court proceedings (except for urgent injunctive relief) in respect of a dispute under these Conditions unless it first attempts to resolve the dispute pursuant to clause 19.1.
19.4 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of a Contract not under dispute.
20. GENERAL
20.1 If any term of these Conditions shall be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by the Seller are subject to the laws of South Australia and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
20.3 This Contract is made in the State of South Australia and the Buyer and the Seller agree that, unless otherwise stipulated by the Seller, all disputes arising between them shall be submitted to the court of the State of South Australia and any court competent to hear appeals from those courts of first instance.
20.4 The Seller may license or sub-contract all or any part of its rights and obligations of a Contract without the Buyer’s consent (provided that the Seller shall remain liable to the Buyer for the performance of its obligations, except in the case of the Seller disposing of its business, or a material part thereof, to a third party) however if the Buyer wishes to do the same it must first obtain the written consent of the Seller.
20.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.6 A reference in these Conditions to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it.
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