16.1 The following applies until full payment has been made for all Goods supplied and Services provided, and any other sums in any way outstanding from the Applicant to the Company from time to time
- 16.1.1 The property in any Goods does not pass to the Applicant and the Applicant holds the Goods as bailee for the Company.
- 16.1.2 The Applicant must return the Goods to the Company on request.
- 16.1.3 If the Goods are not the Applicant’s inventory, the Applicant must not sell or otherwise transfer or dispose of the Goods or part with possession of them without the Company’s consent.
- 16.1.4 The Applicant must hold all proceeds from those Goods in trust for the Company and must promptly pay to the Company the proceeds (or the value of the proceeds) or such part thereof needed to fully pay all sums owed by the Applicant to the Company.
- 16.1.5 the Company (acting personally or by its nominated agent) is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Applicant and to act on its behalf, if necessary, to recover possession of the Goods.
- 16.1.6 The Applicant shall wherever possible store the Goods separately (and not commingle them with other Goods) until title in them has passed.
- 16.1.7 the Company will have a lien on all property of the Applicant in its possession or control and, after giving reasonable notice to the Applicant, may sell or otherwise dispose of such property and apply the proceeds towards satisfaction of the sums owing to the Company.
17. PERSONAL PROPERTY SECURITIES
- 17.1 The parties agree that any agreement for the supply of Goods pursuant to these Terms and Conditions (and in particular clause26) is a security agreement to secure payment of the purchase price and all of the Applicant’s outstanding debts and obligations to the Company from time to time (including any other Goods supplied by the Company to the Applicant). This Security Interest continues until all of the Applicants debts and obligations under this agreement are discharged.
- 17.2 The Applicant agrees that it grants and that the Company may, whilst it is entitled to do so, register a Security Interest in such form, and/or in relation to such rights or property as it shall require, pursuant to the Personal Property Securities Act 2009 (Cth) (PPSA 2009).
- 17.3 The Company will have a Purchase Money Security Interest (PMSI) in all Goods supplied in accordance with these Terms and the Company’s Security Interest shall extend to the Proceeds (including any Accounts) and Accessions.
- 17.4 The Applicant agrees to do all things necessary, including providing all relevant information necessary to register the Security Interest in the Applicant’s personal property (Collateral), (and, if applicable, a Purchase Money Security Interest) on the Personal Property Securities Register (PPSR).
- 17.5 The Applicant waives its rights to receive notices relating to any Financing Statement or any Financing Change Statement relating to the Security Interest in the Collateral.
- 17.6 The Applicant will take all steps necessary to better secure any Collateral securing or that is intended to secure the supply of Goods pursuant to these Terms and Conditions immediately and at the Applicant’s own cost.
- 17.7 The Applicant must pay the Company’s costs of any discharge or amendment of the registration of the Security Interest on the PPSR.
- 17.8 The Applicant agrees that the Company may take whatever action is appropriate to ensure that the Company has first ranking priority in the Collateral and indemnifies the Company against any reasonable costs in doing so.
- 17.9 The Applicant agrees that where the Company has any rights in addition to those conferred by Ch 4 of the PPSA 2009, those rights continue to apply.
- 17.10 The Applicant must not take any steps which will affect the propriety of the Company’s security interest and will take all steps which the Company may reasonably require to enable the Company to enforce or perfect its security interest if so required.
- 17.11 Within two (2) business days of the Company’s written request the Applicant must provide to the Company copies of all documents granting Security Interests registered over its personal property and any Security Interests perfected by Possession or Control within the meaning of PPSA 2009.
- 17.12 The Applicant authorises the Company (as its agent) to request any information under s275 of PPSA 2009 from any Secured Party relating to any Security Interest.
- 17.13 The Applicant will give the Company not less than seven (7) days prior written notice of any proposed change in its name, address, email address, facsimile number, ACN or ABN, company registration or any other details required for requisition on the PPSR.
- 17.14 If the Applicant commingles the Goods with other property the Company’s Security Interest continues in those Processed or Commingled Goods.
- 17.15 The Applicant acknowledges that the Goods are not intended, and must not be used, for personal, household or domestic use.
- 17.16 The Applicant agrees, to the maximum extent permitted by law, to waive its rights to receive any notice that is required by:
- 17.16.1 any provision of the PPSA (including a notice of a verification statement);
- 17.16.2 any other law before a secured party or receiver exercises a right, power or remedy, and cannot be excluded unless the notice is required by the PPSA; and
- 17.16.3 any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy.
- 17.17 The Applicant agrees that, to the maximum extent permitted by law, the sections of the PPSA 2009 described in PPSA 2009 section 115 do not apply to this Agreement or the security interests described in this Agreement.
18. CANCELLATION AND RETURN OF GOODS FOR CREDIT
- So far as the law permits:
- 18.1 No cancellations or partial cancellation of an order by the Applicant shall be accepted by the Company unless it has first consented in writing to such cancellation or partial cancellation. The Company may elect to render a cancellation charge if it accepts a cancellation or partial cancellation of any Order and the Company may require that the Applicant will indemnify the Company against all loss, which the Company may suffer as a result of the cancellation.
- 18.2 The cancellation charge may include a reasonable restocking fee. The Company will not (except where there are exceptional circumstances) charge a restocking fee where Goods are returned without defect in original packaging in good and saleable condition within seven days of the date of original dispatch.
- 18.3 Cancellation will not be accepted without a cancellation charge being levied on Goods that are not regular stock, where the Company has commenced the process of acquisition or manufacture, or where Goods are ready for shipment.
- 18.4 In respect of Goods delivered to the Applicant at its request, and unless otherwise required by law, the Company at its discretion will only allow the Applicant credit for returned Goods in accordance with the following conditions:
- 18.4.1 In every case proof of purchase (and preferably the original number and date of invoice) must be quoted by the Applicant;
- 18.4.2 Goods must be returned to the Company’s warehouse in which the order was placed, within 30 (thirty) days from the date of delivery to the Applicant;
- 18.4.3 Where Goods are supplied by the Company in a special manufacturer’s carton then the Goods must be returned in that carton in their original and unmarked condition, complete with all instructions and other documents originally supplied therewith.
- 18.4.4 Charges for outward and inward freight, packing and delivery are for the account of the Applicant and should be prepaid. If such charges are not so paid by the Applicant then they will be deducted from the credit otherwise allowed.
- 18.4.5 Subject to clause 18.2, the Applicant agrees that the Company shall be entitled to charge a restocking fee in an amount equivalent to 20% of the invoiced price of the returned Goods.
- 18.5 Unless otherwise required by law, the following Goods which have been supplied by the Company at the Applicant’s request cannot be returned for credit:
- 18.5.1 Any Goods that have been altered, damaged, or used in any manner whatsoever, by the Applicant or any person other than the Company;
- 18.5.2 Any Goods which have been made or purchased on special order (including Goods purchased for special projects or cut to order), of the Applicant or any other person.
- 18.5.3 Any Goods which were invoiced to the Applicant more than 6 months prior to their return.
- 18.6 The Applicant must not return any Goods to the Company without first obtaining the consent of the Company’s Account Manager.
- 18.7 No returns will be accepted without being accompanied by a clearly marked document stating the relevant invoice or delivery docket number with which the Goods were supplied, in addition to the Company’s written consent.
- 18.8 The Applicant must pay freight charges in relation to the return of Goods. Where Goods are shown to the Company’s satisfaction to be defective on delivery, the Company will reimburse the Applicant for reasonable freight charges.
- 18.9 Unauthorised returns and collect shipments will not be accepted.
- 18.10 All Goods must where possible be returned in the original packaging, and the Applicant is responsible for all damage incurred during return shipment.
19. INTELLECTUAL PROPERTY
- 19.1 The Company is not liable for any infringement of any intellectual property rights arising out of the use of the Goods by the Applicant.
- 19.2 Any specifications, drawings or other particulars (including any intellectual property rights therein) to be provided by the Applicant to the Company in accordance with these Terms and Conditions, including pursuant to paragraph 29.3 to enable the Company to make the supply or to complete any works, will remain the sole property of the Applicant.
- 19.3 The Applicant consents to the Company making such modifications, variations or adaptations to the specifications, drawings or other particulars as may be necessary to enable the Company make the supply of any Goods or to complete the works and any such action by the Company shall not constitute an infringement of Applicant’s intellectual property rights or moral rights, (which are hereby expressly waived).
- 19.4 Unless otherwise agreed in writing:
- 19.4.1 all intellectual property rights which are created by the Company in provision of the Services, the supply of the Goods, (including any sample, prototype or working copy), or completion of the works, including in relation to any plans, copyright works, electric circuit diagrams, designs, drawings and specifications, whether conceived, generated, manufactured or prepared by the Company pursuant to this Agreement; and
- 19.4.2 any copyright, design rights, patents, trade secrets, confidential information and other intellectual property rights created, generated or conceived by the Company in relation to the completion of the works or the provision of Goods and Services including in relation to their method of manufacture or other business methods,
- remain vested in the Company and shall be the Company’s property notwithstanding any charge made by the Company to the Applicant.
- 19.5 The Company reserves all proprietary and industrial property rights vested in it in relation to such Information.
- 19.6 Where the Company has made such modifications, variations or adaptations to the specifications, drawings or other particulars provided to the Company by the Applicant in relation to the supply of Goods or completion of the works:
- 19.6.1 the intellectual property rights in such modifications, variations or adaptations vests in the Company (as identified in clause 29.3) unless otherwise agreed in writing; and
- 19.6.2 where otherwise agreed, the Applicant shall grant to the Company a perpetual, irrevocable, royalty-free licence to use the specifications, drawings or other particulars, to the extent that it is necessary to do so to enable the Company to use or commercialise the modifications variations or adaptations created, generated or conceived by the Company during the supply or completion of the works.
- 19.7 Where the Company uses the Applicant’s patterns, jigs, tools or fixtures, the Applicant shall be liable for any repairs, alterations or replacement necessary thereto or for any damage or loss (unless occurring exclusively due to the negligence of the Company) whether due to fair wear and tear, lack of suitability for the production of Goods or any other cause.
- 19.8 The Applicant will keep confidential any confidential information (including, but not limited to, trade secrets, plans, know-how, processes, formulae and business methods) which it may receive from the Company pursuant to these Terms and Conditions, irrespective of whether the information is marked as confidential, for long as the information remains confidential, unless:
- 19.8.1 the information becomes public knowledge (other than by an act of the Applicant);
- 19.8.2 the Applicant is required by law to publish the information; or
- 19.8.3 the Company confirms in writing that the information is no longer confidential.
- 20.1 Any Contract may at the Company’s option be terminated in the event of:
- 20.1.1 the insolvency of the Applicant;
- 20.1.2 execution being levied against any of the Goods of the Applicant; or
- 20.1.3 the Applicant being placed in liquidation, whether voluntary or otherwise.
- 20.2 Upon such termination, the Company shall be entitled to repossess and take back at the cost of the Applicant, all Goods which remain the property of the Company without prejudice to any other right conferred upon the Company by law.
- 20.3 The Company may terminate all or part of this Agreement (and, for the purposes of clarity, may refuse to fulfil an Order) by notice in writing to the Applicant if the Company has reasonable grounds for believing that the Applicant is unable to pay its debts as and when they fall due.
21. CHANGE OF OWNERSHIP
- 21.1 The Applicant agrees to notify the Company of any change in ownership or address.
- 21.2 Notwithstanding any change in the Applicant’s ownership/trading status, or any advice by it to the Company of such change, the Applicant will remain personally liable for any Goods and services requested by it or on its behalf, until it has received written confirmation from the Company that its account has been closed and full payment received and a new account has been opened in the name of the new entity.
- 22.1 These Terms outline how the Company warrants our products for all Goods purchased after 1 January 2011.
- 22.2 The Australian Consumer Law (ACL) protects consumers by giving them certain rights relating to the purchase of Goods and services.
- 22.3 If the Applicant is a ‘consumer’ as the term is defined in the ACL, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
23. ADDITIONAL MANUFACTURER’S WARRANTY
- 23.1 The Company takes all reasonable steps to ensure that it supplies high quality products. In some circumstances the Company may supply products with an additional manufacturer’s warranty. Where provided by the manufacturer, such additional manufacturer’s warranty will apply in addition to these Terms and Conditions and is available from the manufacturer and subject to any terms which they may impose. Whilst the Company may endeavor to assist you in dealing with the manufacturer in relation to the manufacturer’s warranty, the Company is not obliged to take any steps or to incur any cost in doing so. The length of the warranty and other terms which apply to a manufacturer’s warranty may change from product to product. If you require our assistance in identifying the provisions of or terms on which any additional manufacturer’s warranty may be granted you should contact us in writing so that we can respond in the same manner to your request. The Company will not make any statement in relation to a manufacturer’s warranty other than in writing in accordance with this clause.
24. LIMITATION OF LIABILITY
- 24.1 Pursuant to s 64A of the Australian Consumer Law, where the goods supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption (and subject to the matters set out in section 64A(3), the Company’s liability for failure to comply with a guarantee implied by Pt 3-2 Div 1, where permitted, is limited to:
- 24.1.1 in the case of Goods, any one or more of the following:
- (a) the replacement of the Goods or the supply of equivalent products;
- (b) the repair of the Goods;
- (c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
- (d) the payment of the cost of having the Goods repaired; and
- 24.1.2 in the case of Services:
- (a) the supplying of the Services again; or
- (b) the payment of the cost of having the Services supplied again.[AN1] 24.2 The Company’s liability under section 275 of the Australian Consumer Law is expressly limited or precluded in relation to any failure to comply with a guarantee that applies to the supply of services under Subdivision B of Division 1 of Part 3-2 of the ACL, in the same way as such liability may be limited or precluded for breach of a term for the supply of services, where the law of a State or Territory is the proper law of these Terms and Conditions.
- 24.2 The Company’s liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the Applicant an amount equal to:
- 24.2.1 the cost of replacing the Goods;
- 24.2.2 the cost of obtaining equivalent Goods; or
- 24.2.3 the cost of having the Goods repaired, whichever is the lesser amount
25. GENERAL EXCLUSION OF LIABILITY
- 25.1 Where permitted by the ACL, where otherwise provided at law, or subject to such other statutory rights (as may apply to the sale of the Goods or provision of the Services from time to time) the Company is not liable for any prospective profits, or special, indirect or consequential damages, or any general loss or damage, or for any expense resulting from use by the Applicant or others of defective Goods or the provision of Services pursuant to these Terms and Conditions.
- 25.2 In that event, the Company’s liability is limited to the amount identified in clause 24, plus replacement delivery charges.25.3 Where the limitations of liability set out in clauses 24 or 25 apply, the Applicant must ensure that terms of a like nature are contained in any contract of sale or onsale of the Goods to a Third Party purchaser.
25.4 The Applicant indemnifies and holds the Company harmless from any claims or demands which are made as a result of the Applicants failure to comply with the requirements of clause 25.3.
26. PRICE LISTS
- 26.1 In the event of resale, the prices set out or referred to in the Company’s price list or any other document, are recommended only and there is no obligation to comply with the recommendation.
- 27.2 The Applicant authorises the Company to give information about the Applicant’s credit arrangements to (and obtain similar information from) any credit provider or credit reporting agency. The Applicant understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under applicable privacy legislation.
- 27.3 The Applicant understands that information which the Company collects about it can be used for the purposes of assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness from time to time.
29. NOTIFICATION OF CHANGE OF OWNERSHIP AND OTHER MATTERS
- 29.1 The Applicant must notify the Company in writing within seven (7) days of any of the following.
- 29.1.1 Any alteration of the name or ownership of the Applicant.
- 29.1.2 The issue of any legal proceedings against the Applicant.
- 29.1.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Applicant.
- 29.1.4 Any change in the ownership of the business name of the Applicant.
- 29.2 The Applicant agrees that it shall be liable to the Company for all Goods supplied to the new owner by the Company until notice of any such change is received.
- 29.3 In the event that there is a change of ownership the Company reserves the right not to supply the new owner. Further, the Company may terminate any Agreement entered into prior to the change in ownership immediately by notice in writing.
30. NO WAIVER
- 30.1 No relaxation by the Company of the Applicant’s obligations under this Agreement shall be regarded as a waiver of the Company’s right to enforce these obligations on a subsequent occasion.
31. APPLICABLE LAW
- 31.1 Irrespective of where the Applicant may reside or where any order is placed, this agreement must be construed according to the laws of the State of Queensland and the parties submit to the jurisdiction of the Courts of the State of Queensland.
- 32.1 To the extent possible, any part of these Terms and Conditions which is found to be invalid or unenforceable must be severed or read down to the extent necessary to stop them being invalid and unenforceable without affecting the validity of any other part these Terms and Conditions.