- 1. Application
- 2. Formation of Agreement
- 3. Price and Payment
- 4. Delivery of Products
- 5. Returns
- 6. Title and risk of Products
- 7. PPSA
- 8. Warranties and liability
- 9. Express Warranties
- 10. Intellectual Property
- 11. Indemnity
- 12. No representations
- 13. Confidentiality
- 14. Privacy
- 15. GST
- 16. Force Majeure
- 17. Termination
- 18. Acknowledgements and representations
- 19. Inconsistency
- 20. Miscellaneous
- 21. Definitions
These Terms apply to and govern the supply by the Company of Products and/or Services to the Customer which are to be provided under an Order accepted by the Company.
2. Formation of Agreement
2.1 The Customer acknowledges and agrees that:
(a) by providing a Quotation to the Customer, the Company offers to supply the Products and/or Services to the Customer on the terms and conditions contained in:
(i) these Terms; and
(ii) the Price List or the Quotation;
(b) the Quotation will remain valid for thirty (30) days from the date on which the Quotation was provided to the Customer and the Customer may accept the Quotation during this period by notifying the Company in writing that it accepts the Quotation; and
(c) if the Customer accepts the Quotation, the Customer accepts the terms and conditions of:
(i) these Terms; and
(ii) the Price List or the Quotation, and
submits an order for the Products and/or Services from the Company as detailed in the Quotation (“Order”); and
(d) the Quotation is not an offer and must not be construed as an offer or obligation to supply in accordance with the Quotation, and the Company reserves the right to accept or reject, at its discretion, any Order submitted by the Customer.
2.2 An Agreement will be formed between the Company and the Customer in respect of each Order upon the earlier of the Company:
(a) notifying the Customer, either verbally or in writing, that it accepts the Order (“Order Confirmation”);
(b) accepting, in full or part, payment from the Customer for the Products and/or Services;
(c) delivering the Products to the Customer; or
(d) performing the Services.
2.3 An Agreement formed under clause 2 will comprise:
(a) these Terms;
(b) any Trading Account Terms (if applicable);
(c) any Price List or Quotation; and
(d) the Invoice.
3. Price and Payment
3.1 Unless otherwise agreed by the parties, the Customer must pay the following amounts without any set-off, counterclaim, deduction or withholding for the provision of the Products and/or Services by the Company under an Agreement:
(a) the price specified in the Price List or Quotation (as applicable);
(b) if applicable, the Delivery Fee; and
(c) if between the date of the Offer and the date of delivery of the Products the costs of supplying the Products increase by reasons beyond the reasonable control of the Company, the amount of the increased costs,
3.2 Unless otherwise expressly agreed by the Company, all prices stated are exclusive of Taxes, delivery costs and freight charges and the Customer is solely responsible for payment of all Taxes, delivery and freight charges levied or payable in respect of the Products and/or Services
3.3 The Company may issue an Invoice to the Customer for the Fees at any time following receipt of an Offer by the Customer (“Invoice”).
3.4 Accepted methods of payment include electronic funds transfer and cheque.
3.5 Unless otherwise stated in the Quotation or Invoice, the Customer must pay the Fees to the Company either:
(a) thirty (30) days from the end of the month in which the Invoice was issued; or
(b) as specified in the Trading Account Terms if:
(i) the Trading Account facility has been accepted by the Company in accordance with the Trading Account Terms; and
(ii) the value of the Invoice, combined with any outstanding amounts owed by the Customer to the Company, does not exceed any approved Trading Limit,
(collectively “Due Date”).
3.6 If the Customer fails to make any payment by the Due Date or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to the Company, the Company may, in its sole discretion:
(a) suspend any further deliveries of Products and/or the provision of Services to the Customer arising from any Agreement;
(b) cancel, in whole or in part, any Agreement in respect of any Products and/or Services not yet supplied to the Customer;
(c) terminate any Agreement in accordance with clause 1 of these Terms;
(d) enter the property of the Customer for the purpose of repossessing the Products;
(e) appoint a receiver or receiver and manager to the Customer to do anything the law allows a receiver or receiver and manager to do;
(f) charge Interest to the Customer (both before and after any judgement) on any amount that remains unpaid by the Customer following a Due Date (“Outstanding Amount”), which will accrue and be chargeable on the Outstanding Amount from the day following the Due Date until the Company receives the Outstanding Amount and any Interest accrued thereon by way of cleared funds;
(g) amend, cancel or suspend any Trading Limits or Trading Account granted to the Customer by the Company; and/or
(h) amend, cancel or suspend any trade discounts or rebates provided, or otherwise offered, to the Customer under any Agreement or other arrangement.
4. Delivery of Products
4.1 Unless otherwise:
(a) agreed between the Company and the Customer; or
(b) notified by the Company to the Customer,
the Company must deliver the Products and/or the Services to the Customer:
(c) as specified in the Quotation (if applicable); and
(d) in accordance with the Order Confirmation.
4.2 Unless otherwise agreed by the Company, Orders for Products cannot be suspended or cancelled and the Customer must pay all reasonable expended incurred by the Company due to suspension or cancellation of an Order.
4.3 In the event that the Customer refuses or fails to accept delivery of the Products, the Company is entitled to:
(a) full payment for the Products; and
(b) to treat the obligation to supply the remainder of the Products (if any) as cancelled by the Customer.
4.4 In the event that the Customer refuses or fails to accept delivery of the Products, the Company may store, at the risk and cost of the Customer, the Products without limiting any other rights the Company may have in respect of those Products, any other Orders, and any other rights under an Agreement.
4.5 The Company will use its reasonable endeavours to deliver the Products on or before the delivery date specified in the Order Confirmation or as otherwise advised by the Company in writing from time to time, however the Customer acknowledges that all delivery and dispatch dates are estimates only and the Company will not, in any circumstances, be liable for late delivery of the Products and late delivery of Products does not entitle the Customer to cancel any Order or part order for the Products.
4.6 Without limiting clause 5, the Company may make part delivery of the Products to the Customer and render an Invoice to the Customer for the Products delivered. The Customer must not refuse to accept delivery of the Products or to pay for the Products delivered and the Customer agrees that the Company will not be liable for any Loss that the Customer suffers as a result of any delay in delivering the Products or cancellation of an Order by the Company.
4.7 The Customer acknowledges and agrees that it will have a representative present at the delivery location for the Products on the delivery date notified by the Company from time to time and if no such representative is present, a redelivery fee may be charged by the Company to the Customer.
5.1 Subject to and to the maximum extent permitted by the Consumer Law, Products are sold on a non-return basis and unless damaged, faulty or incorrectly delivered cannot be returned.
5.2 If the Customer is not a Consumer, the Customer is only entitled to return the Products to the Company if it believes the Products are not supplied in accordance with the description, quality or quantity set out in the Quotation.
5.3 Any return of Products must:
(a) be made by raising a claim for credit with the Company;
(b) be approved by the Company prior to the Products being returned to the Company and the Company reserves the right to inspect Products to be returned;
(c) be made at the Customer’s cost; and
(d) be returned according to the Company’s procedure for returns, as updated by the Company from time to time, including but not limited to the Products:
(i) being returned in the Products’ original packaging which must be an its original and saleable condition. For the avoidance of doubt, the Products must not have been installed;
(ii) including the Invoice number for the Products being returned;
(iii) if the Products are returned pursuant to clause 1:
- the Customer must advise the Company of any damage to the Products within two (2) days after the delivery date, otherwise no liability will be accepted, noting Products in transit may be insured against shipping and breakages at an additional cost if requested by the Customer;
- all damaged of faulty Products (excluding unavoidable imperfections) will be credited or replaced if the Company is advised within seven (7) days after the delivery date and upon inspection by the Company are found to be damaged or faulty; and
- the Company will not be liable for any special, exemplary, punitive or consequential Loss incurred by the Customer; and
(iv) if the Products are returned pursuant to clause 2, Products must be returned within seven (7) days of the date of delivery of the Products (unless the claim is in relation to the quantity of Products supplied, in which case the claim must be made within two (2) Business Days of the date of delivery of the Products).
5.4 If the Company, at its sole discretion, determines that the Products may be returned under clauses 1 or 5.2, the Company may, at its sole discretion:
(a) credit the Trading Account of the Customer with credit equal to the price specified in the Price List or Quotation (as applicable) for the relevant Products; or
(b) supply replacement Products to the Customer.
5.5 If the Company, at its sole discretion, determines in good faith to accept a return of Products for reasons other than because the Products returned do not meet the description, quality or quantity set out in the Quotation, the Customer must pay a restocking fee equal to 20% of the Fees payable in respect of returned Products.
5.6 Once a Product is installed the terms of the Express Warranty will apply.
6. Title and risk of Products
6.1 Title to, and property in, any Products supplied under an Agreement remain with the Company and will only pass to the Customer once all Fees owing by the Customer to the Company in respect of the Agreement or any other agreement or arrangement between the parties have been paid in full.
6.2 Risk in the Products passes to the Customer upon the Products being removed from the Company’s premises, and the Customer indemnifies the Company against any Loss or damage to the Products, however caused, occurring after the Products have been removed from the Company’s premises.
6.3 In the event that the Customer is required to return any Products to the Company and the Company has approved the return of the Products, risk in the Products passes to the Company upon receipt of the Products at the Company’s premises.
6.4 Until such time as full title, property and ownership of the Products passes to the Customer in accordance with clause 1, and while the Products remain in the Customer’s full control and possession:
(a) the Customer must hold the Products as the Company’s fiduciary agent and bailee;
(b) the Company may at any time after the Due Date in respect of a Product, require the Customer to deliver the Products to the Company and, if the Customer fails to deliver the Products immediately, the Company may enter the premises of the Customer or any third party where the Products are stored and repossess them and, in order to enable the Company to exercise its rights under this clause 6, the Customer authorises and grants the Company an express, irrevocable licence to enter the premises of the Customer to remove or arrange for the removal of the Products; and
(c) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Products which remain the property of the Company. If the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Products for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) immediately become due and payable to the Company.
7.1 Words and expressions used in this clause 7 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
7.2 Until the Customer has paid for the Products in full, the Customer acknowledges and agrees that:
(a) the Agreement for the supply of Products created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grants the Company a purchase money security interest in the Products to secure the Fees relating to the Products;
(b) the property and title in the Products shall not pass to the Customer and the Company retains the legal and equitable title in those Products supplied and not yet sold;
(c) until payment in full has been made to the Company, the Customer will hold the Products in a fiduciary capacity for the Company and agrees to store the Goods in such a manner that they can be identified as the property of the Company, and shall not mix the Products with other similar products;
(d) the Customer shall be entitled to sell the Products in the ordinary course of business, but until full payment for the Products has been made to the Company, the Customer shall sell as agent and bailee for the Company and the proceeds of sale of the Products shall be held by the Customer on trust for the Company absolutely;
(e) the Customer’s indebtedness to the Company, whether in full or in part, shall not be discharged by the operation of clause 2(e) unless and until the funds held on trust are remitted to the Company;
(f) the Company has the right, with or without prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect and/or repossess the Products if payment is overdue and the Company, its employees or agents will not be liable for trespass or similar action;
(g) where the Company has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply;
(h) if the Products are repossessed by the Company, the Company has the absolute right to sell or deal with the Products, and if necessary, sell the Products; and
(i) the Company is not obliged to act in any way to dispose of or to retain any Products which have been seized by the Company or any person nominated by the Company under its rights under the PPSA.
7.3 The Company’s security interest attached to any proceeds derived, directly or indirectly from any sale or dealing with the Products otherwise arising out of or in relation to the Products whether or not the sale is permitted under these Terms.
7.4 The Customer must not, without the Company’s prior written consent, create or attempt to create or permit a security interest, however ranking, over the Products.
7.5 Without limiting anything else in these Terms, the Customer consents to the Company effecting a registration on the Personal Property Securities Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, these Terms, including in relation to the Products.
7.6 The Customer agrees to promptly do all things reasonably required by the Company (including executing any new document, obtaining consents, signing and producing documents and supplying addition information) which may be required for the purposes of:
(a) ensuring that any security interest created under these Terms is enforceable, perfected and otherwise effective and remains continuously so;
(b) ensuring that any security interest created under these Terms is continuously perfected by control or in a way that will reduce the risk of a third party acquiring any interest in any property the subject of the security interest to the maximum extent possible under the PPSA;
(c) enabling the Company to apply for registration of its security interest and ensuring any defect in any security interest, including registration, is overcome;
(d) ensuring the Company’s priority position is preserved or secured; and
(e) enabling the Company to exercise any right or power in connection with the security interest.
7.7 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Company for that purpose in relation to the Products). Without limiting the foregoing, the Customer must:
(a) create and implement appropriate policies and systems to register a security interest in relation to the Products where the Customer on sells the Products to a third party; and
(b) where appropriate, take reasonable steps to identify security interests in relation to the Products in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available.
7.8 The Customer must indemnify, and on demand reimburse, the Company for all expenses incurred in complying with, or enforcing, clause 2 or registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of the Company’s security interests.
7.9 The Customer must not change its name, ABN/EIN, address or contact details without providing prior written notice to the Company and must not register a financing change statement or a change demand without the Company’s prior written consent.
7.10 To the extent that the PPSA permits, the Customer waives its rights:
(a) to receive a copy of any verification statement or financing change statement;
(b) to receive any notice required under the PPSA, including notice of a verification statement;
(c) to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and
(d) under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
7.11 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Company has given prior written consent.
8. Warranties and liability
8.1 Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Consumer Law or the Customer’s rights to make a claim in respect of any consumer guarantees or other provision of the Consumer Law.
8.2 Subject to clause 4, if the Customer is not a Consumer then, to the extent permitted by law, the Company excludes all liability for any Loss incurred by the Customer as a result of an Agreement. This clause applies even if the Company knew or ought to have known that it was possible or foreseeable that the Customer would incur such Loss.
8.3 Notwithstanding clause 2, if the Customer is a Consumer and the Products or Services are Non PDH Goods or Services, the Company’s liability to the Customer is limited at the Company’s option to:
(a) in the case of the Products:
(i) the replacement of the Products or the supply of equivalent products;
(ii) the repair of the Products;
(iii) the payment of the cost of replacing the Products or of acquiring equivalent products; or
(iv) the payment of the cost of having the Products repaired; and
(b) in the case of the Services:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
8.4 If the Customer is liable to indemnify a Consumer under the Consumer Law in relation to the supply of Products which are Non PDH Goods or Services, the Company’s liability to the Customer is limited to an amount equal to the lower of:
(a) the cost of replacing the Products;
(b) the cost of obtaining equivalent Products; or
(c) the cost of having the Products repaired.
8.5 Without limiting any other provision in these Terms, the Company is not liable for any Loss the Customer suffers as a result of:
(a) improper use of the Products;
(b) improper installation of the Products; and
(c) misuse or neglect of the Products or any other use of the Products which is outside of the ordinary commercial application of the Products or is otherwise inconsistent with the Company’s instructions in relation to the use of the Products.
8.6 To the extent permitted by the Consumer Law, the Company is not liable for any loss of profit, economic of financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer.
9. Express Warranties
9.1 In addition to any rights provided at law, the Company provides the Express Warranties to any End Purchaser of the Products.
9.2 The Customer must:
(a) ensure that the Warranty Card is included in the packaging of the Products which are supplied or sold to an End Purchaser;
(b) not remove or alter the Warranty Card, or any Express Warranty contained therein, from any packaging on the Products;
(c) not, without the Company’s express written consent, make any representation to any End Purchaser regarding the purpose, performance or durability of the Products, which is inconsistent with the Express Warranties or which is in breach of the Consumer Law;
(d) take all steps and do all things necessary to promptly pass on to the Company any claim made by an End Purchaser arising out of or in connection with the Consumer Law or under an Express Warranty and must, at the Customer’s expense, assist the Company to comply with its obligations under the Consumer Law and the Express Warranty; and
(e) not agree to settle any claim made by an End Purchaser arising out of or in connection with the Consumer Law or under an Express Warranty without the prior written consent of the Company.
9.3 The Customer expressly acknowledges and agrees that Company is not liable for any advice given by its agents or employees in relation to the suitability for any purpose of the Products or materials supplied by the Company and all such advice relied upon is at the Customer’s sole risk.
10. Intellectual Property
10.1 The Customer grants to the Company a non-exclusive, royalty free licence during the term of each Agreement to use, reproduce, modify, adapt and further develop all Intellectual Property Rights in the Customer Background Materials which are required for the Company to supply the Products and/or perform the Services.
10.2 The Customer represents and warrants to the Company that the Customer:
(a) is the legal and beneficial owner of, or is entitled to use (or will on creation own or be entitled to use); and
(b) is entitled to licence to the Company in accordance with clause 1, the Intellectual Property Rights in the Customer Background Materials.
The Customer indemnifies the Company and holds the Company harmless from and against all Loss (including all legal costs, and any other associated fees and costs) for which the Company incurs as a direct or indirect result of:
(a) recovering any Fees or other amounts the Customer owes to the Company;
(b) any breach of an Agreement by the Customer (including any breach of the warranties provided by the Customer);
(c) any negligent or wilful act or omission by the Customer, the Customer’s employees, agents, servants, contractors or others for whom the Customer is legally responsible; and
(d) any infringement or alleged infringement of Intellectual Property Rights owned by a third party in respect of the Customer Background Materials.
12. No representations
The Customer acknowledges and agrees that it has not relied on any representations, inducements or statements made to it by the Company regarding the supply of the Products and/or Services and it has satisfied itself that the Products and/or Services are fit for the purpose it requires them for.
13.1 The Customer:
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only:
(i) to employees and contractors who:
- are aware and agree that the Confidential Information of the Company must be kept confidential; and
- either need to know or have been specifically approved by the Company; or
(ii) as required by law or stock exchange regulation.
13.2 The Customer must notify the Company immediately once it becomes aware of any breach of confidentiality and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
15.1 All amounts payable by the Customer in connection with an Agreement are expressed to be exclusive of GST. If GST is payable on any supply made by the Company under these Terms, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply.
15.2 Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment.
15.3 This clause does not merge on completion or termination of the relevant Agreement.
15.4 In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.
16. Force Majeure
16.1 The Company will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to Force Majeure Event.
16.2 If a Force Majeure Event exceeds twenty (20) Business Days, the Company may immediately terminate the Agreement by written notice to the Customer.
17.1 Without limiting the Company’s other rights under these Terms, the Company may terminate an Agreement and any Trading Account with immediate effect by written notice to the Customer if:
(a) the Customer is the subject of an Insolvency Event;
(b) the Customer has breached any term of the relevant Agreement (including these Terms); or
(c) in accordance with clause 2.
17.2 On termination of an Agreement, the Customer must, at its cost and within ten (10) Business Days of the date of termination, return to the Company all unpaid Products the subject of the Agreement and any Product displays and other promotional materials provided by the Company in relation to the Products.
17.3 If Product displays are not returned to the Company in accordance with clause 2 within thirty (30) days of termination of the Agreement, the Company may charge the Customer an amount equal to 50% of the retail price of the relevant Product.
17.4 Upon termination, each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
18. Acknowledgements and representations
18.1 If a Quotation has been issued by the Company, the Customer acknowledges that it has been prepared by the Company on the basis of, and in reliance upon, any information, specifications, data, representations, statements and documents provided by the Customer.
18.2 In making an Order, the Customer warrants and represents to the Company that it has read and understood these Terms prior to making the Order, and agrees to be bound by these Terms in full.
18.3 The Customer acknowledges that, from time to time and without notice, the Company may change the construction, design or dimensions of its Products and the Company is not liable for any resulting Loss.
19.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3, the following order of precedence shall apply to the extent of the inconsistency:
(a) the Price List or Quotation (as applicable);
(b) these Terms;
(c) the Trading Account Terms; and
(d) the Invoice.
19.2 These Terms shall prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing.
20.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word “person” includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns; and
(e) headings are inserted for convenience and do not affect the interpretation of these Terms.
20.2 Neither an Agreement nor any Order that has been submitted can be cancelled by the Customer except with the prior written consent of the Company and without prejudice to any other rights the Company may have, the Customer indemnifies the Company for any Loss incurred by the Company in connection with such cancellation.
20.3 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without the Company’s prior written consent. The Company may assign or deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time and without any requirement to notify the Customer.
20.4 The Company may vary these Terms at any time and all variations will take effect immediately upon the earlier of the Company posting the amended Terms on its website or providing the amended Terms to the Customer.
20.5 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
20.6 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
20.7 These Terms and the accepted Agreement constitute the entire agreement between the Customer and the Company in respect of the supply of the Products and/or Services and supersede all previous communications, representations, understandings or agreements.
20.8 These Terms are governed by the laws in force in Victoria, Australia, and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
20.9 The provisions of clauses 6, 7, 8, 9, 10, 11, 13, 14, 16 and 20 of these Terms survive the expiry or termination of the Agreement.
20.10 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
20.11 The relationship between the parties is and will remain that of independent contractors, and nothing in the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
20.12 Notices by a party must be delivered by hand, prepaid post, facsimile or email and sent to the address of the receiving party specified in the Agreement. Notices shall be deemed to have been received by hand upon delivery, by post within two (2) Business Days of sending, by facsimile upon receipt of a successful transmission report and by email one hour after the email (unless the sender knows that email has failed to send).
In these Terms, the capitalised terms have the following meanings or otherwise as defined in the Warranty Card:
(a) $ means USD, unless specified otherwise;
(b) Agreement means each Order which is accepted by the Company;
(c) USD means United States dollars;
(d) Business Day means any day except a Saturday, Sunday or public holiday in Victoria, Australia;
(e) Company means Phoenix Industries Pty Ltd (ABN 48 007 215 876) of 926 Mountain Highway, Bayswater, Victoria 3153 trading as ‘Phoenix Tapware’ and ‘Australian Designer Faucets’;
(f) Confidential Information means all information disclosed by the Company to the Customer and includes these Terms and the prices of the Products or Services but excludes information that:
- is public knowledge or becomes available to the Customer from a source other than the Company (otherwise than as a result of a breach of confidentiality by the Customer or any person to whom it has disclosed the information); and
- is rightfully known to, or in the possession or control of the Customer and not subject to an obligation of confidentiality in accordance with the terms of an Agreement;
(g) Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss opportunities;
(h) Consumer has the meaning provided to it in the Consumer Law;
(i) Consumer Law means the Schedule 2 of the Competition and Consumer Act 2010 (Cth) referred to as the Australian Consumer Law, any equivalent State or Territory legislation, and the equivalent legislation or statutory regime in the jurisdiction in which:
- the Customer is registered or operates; or
- Products or Services are supplied,
as the context requires;
(j) Customer means the entity or person requesting that Products or Services be supplied to it by the Company;
(k) Customer Background Materials means all material in whatever form (including documents, specifications, designs, plans, processes, information and data) owned or licensed by the Customer and provided by, or on behalf of, the Customer to the Company for the purposes of an Agreement;
(l) Delivery Fee means the delivery fee charged by the Company to the Customer as specified in the Price List or relevant Quotation (if applicable);
(m) End Purchaser means the person who acquires the Products for their own consumption or use and not for resale or resupply;
(n) Express Warranties means the warranties the Company wishes to provide to End Purchasers, as set out in the Warranty Card;
(o) Fees has the meaning provided to it in clause 1;
(p) Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party including any fire, failure or shortage of power supplies, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action or the threat of any of the foregoing;
(q) GST has the meaning given to it by the GST Act;
(r) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended, varied or replaced from time to time;
(s) Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or the occurrence of any event that has substantially the same effect to any of the above events;
(t) Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions;
(u) Interest means interest charged to the Customer at an interest rate equal to the National Australia Bank published overdraft rate from time to time;
(v) Invoice has the meaning provided to it in clause 3;
(w) Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss;
(x) Non PDH Goods or Services means goods or services which, for the purposes of the Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption;
(y) Order has the meaning provided to it in clause 1(c);
(z) Order Confirmation has the meaning provided to it in clause 2(a);
(aa) Price List means any price list or catalogue of the Company’s products published and distributed by the Company in hard copy and electronically (including by making available for viewing through its official website) to its actual and prospective customers, setting out product details and current prices (being the current recommended retail price), as updated and replaced by the Company from time to time;
(bb) Products means the products to be supplied by the Company to the Customer under an Agreement;
(cc) Quotation means the quote, if any, provided by the Company to the Customer in respect of the Products and/or Services;
(dd) Services means any services provided by the Company to the Customer as listed in the accepted Quotation;
(ee) Tax or Taxes means any tax, levy, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, GST, consumption tax, value added tax or any other taxes, levies or charges), which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any such amounts;
(ff) Terms means these terms and conditions;
(gg) Trading Account means the trading account facility of the Customer for the providing of Products and/or Services by the Company;
(hh) Trading Account Application Form means the form completed by the Customer in applying for a Trading Account;
(ii) Trading Account Terms means the terms and conditions contained in the Trading Account Application Form governing the Customer’s use of the Trading Account;
(jj) Trading Limit means the value of any Trading Account limit granted by the Company to the Customer; and
(kk) Warranty Card means the warranty card which sets out the Express Warranties, in the form set out in the schedule to these Terms.