Terms + Conditions of Sale
1.1 Currency: These Terms apply to the supply of all Goods by us to you from the date that you accept these Terms.
1.2 Acceptance: You accept these Terms when:
1.2.1 you provide us with a completed account application form or apply for credit;
1.2.2 you submit an Order;
1.2.3 you accept delivery of, or any part of, the Goods pursuant to an Order; or
1.2.4 you make Payment, or partial Payment, for any Goods supplied by us,
whichever occurs first.
2. QUOTES + ORDERS
2.1 Providing a Quote: You may request and we may provide to you a Quote relating to the potential supply of Goods, which may include the price and quantity of the Goods proposed to be supplied by us and other relevant details as necessary.
2.2 Validity of Quote: A Quote is valid for 30 days only. We reserve the right to withdraw a Quote at any time before you place an Order.
2.3 Placing an Order: If our Quote is acceptable to you, you may place an Order for each supply of Goods. An Order is not binding until we have provided you in our absolute discretion our acceptance or confirmation of the Order.
2.4 Additional conditions: Unless otherwise agreed by us in writing, these Terms will prevail over, and we will not be bound by, any conditions (express or implied) added or provided by you, whether in an Order or otherwise.
2.5 Prepayment: If you have a prepaid account or if we otherwise require, we will only commence your Order once we have received full payment for our Invoice relating to your Order.
3.1 Price: Unless otherwise agreed to in writing by us or by our authorised representative, subject to clause 3.2, the price charged and payable for the Goods shall be the price in Australian dollars at the date we issue the Invoice to you, together with any applicable taxes, charges and delivery costs in relation to the Goods.
3.2 Variation of price: Prices contained in any Quote for the supply of Goods are based on the cost prevailing and the specification supplied at the time of the Quote. Subject to your rights under law, we reserve the right to vary the price if:
3.2.1 there is any movement in the cost of supplying the Goods specified in your Order, including any Charges;
3.2.2 the Goods specified in your Order are varied from the Goods specified in our Quote; or
3.2.3 otherwise provided in these Terms.
3.3 Imported goods:
3.3.1 We may, at our discretion, suspend your Order or vary the price for imported goods charged to you if the relevant exchange rate between the date of our Quote and the date of our Invoice varies by 5% or more.
3.4 Discounts: No discounts will apply to the price without our prior written agreement.
4.1 Invoice on delivery: Unless we otherwise notify you in writing, we will issue you an Invoice upon delivery of the Goods specified in your Order.
4.2 Payment terms: Unless we otherwise notify you in writing, or you have a credit account with us, goods shall be paid for in full on our issue of a proforma invoice to you, before supply of such goods.
4.3 Credit: If you have a credit account with us:
4.3.1 We may at our discretion grant you a credit limit in accordance with our determination of your creditworthiness.
4.3.2 We may change the amount of credit available to you or your payment terms, including without limitation if we consider that your credit worthiness has changed for any reason.
4.3.3 Unless we otherwise agree in writing, you must not exceed the credit limit granted to you in accordance with these Terms.
4.3.4 All Payments must be made in full within 27 days from the end of the month in which the Goods are purchased.
4.4 Payment method: All Payments are to be made to us in cash, by direct credit to the bank account nominated by us, by credit or by cheque or as otherwise indicated by us in writing.
4.5 Fees: Unless we otherwise notify you in writing, a credit card fee of 1% (incl GST) applies for credit card payments on Orders or credit account payments of $1,000 (incl GST) or more.
4.6 Payment in instalments: We may at our discretion as agreed in writing accept Payments in instalments upon such terms as we see fit.
5. PAYMENT DEFAULT
5.1 Default Interest: We may at our discretion in the event of your failure to make a Payment in accordance with clause 4:
5.1.1 charge Default Interest at the rate of 5% per annum plus the prevailing cash rate maintained by the Reserve Bank of Australia;
5.1.2 cease supply of any and all relevant Goods until all Payments have been made in full;
5.1.3 modify any credit limit or payment terms applicable to you; and/or
5.1.4 terminate any Order or these Terms.
5.2 Payment of Default Interest: Default Interest pursuant to clause 5.1.1 shall be:
5.2.1 payable on demand; and
5.2.2 calculated daily from the date Payment was due to the actual date that the Payment is made in full.
5.3 Costs of enforcement: We may recover from you any costs we incur in the collection of Payment of any Invoice, including legal costs.
5.4 No set off: You may not set off against any Payment any claims which you may have against us.
6. DELIVERY, RISK + INSURANCE
6.1 Delivery: Delivery of the Goods shall take place upon pick up by or delivery of the Goods to you, your agent or nominee or to a carrier commissioned on your behalf as applicable at the place specified by you or as otherwise agreed.
6.2 Cost of delivery: We may charge you the cost of delivering the Goods to you, which will be included in the Payment to be made in relation to the Goods. Any transportation costs incurred after the Goods have been Delivered will be paid by you.
6.3 Instalments: We reserve the right to make deliveries in instalments and these Terms shall be severable as to such instalments.
6.4 Goods provided by you: Where we process goods or materials supplied by you, the responsibility for delivery and insurance of those goods or materials to us shall be borne by you.
6.5 Risk passes on delivery: The risk in the Goods shall pass to you upon the delivery of the Goods in accordance with clause 6.1.
6.6 No liability for delay: We will use reasonable efforts to deliver the Goods to you by the date and to the place specified by you. Without limiting clause 9, if the Delivery of the Goods is delayed:
6.6.1 we shall not be liable for late delivery or delay in delivery; and
6.6.2 the delay does not give you the right to cancel an Order or terminate these Terms.
7. SUSPENSION + CANCELLATION
7.1 Suspension of Order: If as a consequence of an instruction from you, we delay or suspend (but not cancel) an Order or any part of an Order for a period of 7 days or more, we may:
7.1.1 request the payment in full for all work in progress relating to the relevant Order at the time of suspension; and/or
7.1.2 vary the price for the uncompleted portion of the relevant Order.
7.2 Cancellation by you: You may not cancel an Order, or any part of it, unless:
7.2.1 we give our written consent; and
7.2.2 you pay to us (if required by us in our absolute discretion) any and all costs reasonably incurred by us in relation to the cancelled Order or the cancelled part of the Order to the date of cancellation.
7.3 Cancellation by us: We may in writing cancel an Order or delivery of an Order without liability to you (save as required by relevant laws) if:
7.3.1 we reasonably form the opinion that you are insolvent or at material risk of insolvency;
7.3.2 you fail to pay any amount for the Goods on the due date; or
7.3.3 we reasonably form the opinion that supplying Goods to you may have a negative impact upon our business or commercial reputation or image.
8. DEFECTS + RETURN OF GOODS
8.1 This clause 8 is subject to clause 9 and clause 10.
March 2016 2
8.2 Returns: You should inspect the Goods immediately once they are delivered and may only return the Goods if:
8.2.1 they do not materially comply with the Order; or
8.2.2 if permitted by law, including the ACL.
8.3 Notification: If you wish to return any Goods delivered to you, you must give to us:
8.3.1 notice within a reasonable time of your receipt of the Goods; and
8.3.2 the original Invoice details.
8.4 Replacement or credit: If we accept the return of Goods from you, we will at our option either:
8.4.1 replace the returned Goods; or
8.4.2 give a credit or a refund for such Goods.
8.5 Costs to return Goods: You shall, unless you have a statutory or other legal right that permits otherwise:
8.5.1 bear any expense of transportation of Goods returned to us; and
8.5.2 pay the greater of: (1) a re-stocking fee of 20% of Goods returned; or (2) $25, which is a reasonable pre-estimate of loss associated with processing the returned Goods.
8.6 Non-payment of account: We will not accept notifications under clause 8.3 in the event of your non-payment of an account.
8.7 Goods damaged in transit: If the Goods are damaged in the course of being delivered to you:
8.7.1 you must notify us of any claim for Goods damaged in transit within a 2 business days of delivery; and
8.7.2 subject to our acceptance of your claim under this clause 8, we will replace the relevant Goods.
9. EXCLUSIONS + LIMITATIONS
9.1 ACL exception: The exclusions and limitations in this clause 9 are subject to clause 10.
9.2 Excluded rights: All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms, that are not contained in it, are excluded to the fullest extent permitted by law
9.3 Limitations: No warranty is given and we will not be liable for:
9.3.1 alterations to Goods for which we are not responsible;
9.3.2 defects or depreciation caused by wear and tear, accidents, corrosion, dampness or other abnormal conditions or effects;
9.3.3 damage or failure caused by unusual or non-recommended use, misuse or application of the Goods; or
9.3.4 loss caused by any factors beyond our control.
9.4 Indirect loss: We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us.
9.5 Total liability: Our total liability for breach of these Terms or breach of our contractual
obligations or duties at law or in equity (however arising) is limited at our option to:
9.5.1 the replacement of the Goods or the supply of equivalent goods;
9.5.2 the repair or rectification of the Goods;
9.5.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
9.5.4 the payment of the cost of the repair or rectification of the Goods.
9.6 No reliance: You acknowledge that:
9.6.1 you have and will make your own assessment of the fitness for purpose and suitability of any Goods supplied to you;
9.6.2 you do not and will not rely on our skill or judgment nor that of any person by whom any prior negotiations or arrangements in relation to the acquisition of any Goods were conducted or have been or will be made; and
9.6.3 you have not made nor will make known to us the particular purpose for which you acquire Goods.
9.7 Third party work: If we obtain Goods from a third party in order to carry out your instructions or complete an Order:
9.7.1 we will not be liable for any breach of these Terms if that breach is as a result of or is connected with the supply by a third party of such Goods;
9.7.2 any claim by you in relation to the supply of such Goods must be made directly against that third party; and
9.7.3 you must pay for such Goods from the third party plus the cost of or relevant fee for us performing such services for you (if any, and whether separately identified or not).
9.8 We give no warranty in respect of any Goods that are supplied or carried out or provided to you by a third party even where forming part of an Order. Any warranties, statutory guarantees or other rights will be governed by the terms of supply by that provider to you and relevant laws.
10. STATUTORY RIGHTS
10.1 Statutory rights: If you are acquiring Goods from us as a ‘consumer’ for the purposes of the ACL, we acknowledge that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to these Terms as applicable and where permitted by relevant laws.
10.2 No restriction: Nothing in these Terms excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by law that cannot be lawfully excluded, restricted or modified.
10.3 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
11.1 Subject to the PPSA: The provisions of this clause 11 are subject to the provisions of the PPSA and clause 12.
11.2 Possession as bailee: After delivery of the Goods, until the full Payment has been made you shall possess the Goods as bailee only.
11.3 Title: We will retain absolute title over the Goods until:
11.3.1 we have received Payment in full in respect of the Goods; or
11.3.2 the Goods are disposed of in the manner prescribed under clause 12.9.
12. SECURITY INTEREST
12.1 Security Agreement: This clause 12 sets out the Security Agreement between you (Grantor) and us (Secured Party).
12.2 Creation of Security Interest: The Grantor grants to the Secured Party a Security Interest in the Goods supplied by us to you, including all related proceeds (Collateral), as security for all or part of the Payment of any amount relating to the Goods in accordance with these Terms or otherwise. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest in the Collateral.
12.3 Perfection: The Grantor irrevocably gives authority to the Secured Party to register a financing statement with respect to the Security Interest on the PPSR. This clause does not limit how the Secured Party may perfect this Security Interest.
12.4 Information: The Grantor must provide the Secured Party with any information required for the Secured Party to register a financing statement or a financing change statement with respect to this Security Interest on the PPSR.
12.5 Identification: Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
12.5.1 any identifying plate, mark or packaging number on any of the Collateral (including Goods) is not removed, defaced or obliterated; and
12.5.2 the Collateral is identifiable and distinguishable from any other goods or products that may be in the Grantor’s possession and as to each particular Invoice of Goods comprising the Collateral.
12.6 Accessions: The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other goods.
12.7 Remedies: Until this Security Interest in the Collateral has been extinguished, if:
12.7.1 a Default Event occurs in respect of the Grantor; or
12.7.2 the Grantor is in breach of these Terms,
the Secured Party may as it sees fit and without notice to the Grantor, seize, retain or redeem the Collateral, or seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity, including those set out in clause 12.8.
12.8 Right of entry: In additional to any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor irrevocably:
12.8.1 grants the Secured Party the right to:
A demand the immediate return of the Goods to the Secured Party;
B enter the Grantor’s premises to search for and seize the Goods without notice or liability to the Grantor; and
C retain, sell or otherwise dispose of those Goods in any manner it sees fit; and
March 2016 3
12.8.2 indemnifies, and keeps indemnified, the Secured Party against any claim (including in negligence) in respect of any damage to the property of, or the premises occupied by, the Grantor or any consequential loss caused by another party arising relating to searching for and seizing any Goods in accordance with this clause 12.8.
12.9 Permitted use and sale: The Grantor may only sell or deal with any of the Collateral (including accessions) in respect of which full Payment has not been received if:
12.9.1 the proposed transaction is a bona fide transaction to a third party at market value conducted in the ordinary course of business of the Grantor;
12.9.2 all proceeds of the proposed transaction is:
A immediately paid to the Secured Party; or
B held on trust for the Secured Party in a separate account, payable to the Secured Party on demand; and
12.9.3 unless otherwise obligated by law, the Grantor does not disclose to a third party that the proposed transaction is subject to this Security Agreement or that the proceeds will be immediately paid to the Secured Party or held on trust for the Secured Party.
12.10 Costs: The Grantor shall pay all costs incurred by the Secured Party (including costs on a solicitor-client basis and debt collector’s costs) arising out of this Security Agreement, including costs in relation to:
12.10.1 registration of a financing statement or a financing change statement;
12.10.2 seizure, retention, redemption or any other remedy exercised pursuant to clause 12.7; and
12.10.3 the enforcement of its rights under this Security Agreement (including matters incidental to it).
12.11 Extinguishment: The Security Interest is extinguished only if all obligations under this Security Agreement have been satisfied by the Grantor, including the obligation to pay costs as set out in clause 12.10.
12.12 Waiver: Sections 95, 118, 121(4), 125, 130, 132 and 135 of the PPSA shall not apply to the extent that they impose obligations on the Secured Party.
12.13 Waiver of receipt of statements: The Grantor irrevocably waives its right to receive from the Secured Party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this Security Agreement.
12.14 Change of name: The Grantor must immediately notify the Secured Party in writing of any change of name of the Grantor.
12.15 Disclosure: The parties agree that neither the Secured Party nor the Grantor shall disclose information that:
12.15.1 can be requested under section 275(1) of the PPSA (subject to any exceptions that may apply under section 275(7) of the PPSA); or
12.15.2 is protected against disclosure by a duty of confidence.
13. INTELLECTUAL PROPERTY
13.1 Your intellectual property: If you provide us with Material to be used in the supply of the Goods:
13.1.1 you warrant and represent to us that any Goods supplied to you based on the Material you provide to us will not infringe the Intellectual Property Rights of any third party; and
13.1.2 you indemnify and will keep us indemnified from and against any and all claims, liabilities, obligations, expenses or damages which we may suffer or incur as a result or in connection with the representation or warranty in clause 13.1.1 being untrue or breached.
13.2 Licence over Materials: You grant to us a non-exclusive royalty-free license throughout the universe to use all Intellectual Property Rights in all Materials for so long as necessary or convenient for the production of the Goods and the matters contemplated in relation to the delivery of the relevant Goods.
13.3 Our intellectual property: All of our Intellectual Property Rights in and relating to the production, development and supply of the Goods, including but not limited to drawings, illustrations, specifications, and other literature (excluding Materials licensed to us pursuant to clause 13.2) remains our property and shall not be transferred, assigned, licensed, reproduced, disclosed or otherwise given to any other person by you without our prior written consent.
13.4 Confidentiality: You shall keep confidential and shall not use any confidential information communicated by us to you without our prior written consent.
14.1 Prices exclusive of GST: Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
14.2 GST payable in addition: You must pay to us all GST in addition to any other amounts payable by you to us in respect of a taxable supply, which will be payable by you when required to pay for the Goods.
14.3 Issue of tax invoice: We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.
14.4 Third party supplies: If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.
15.1 Indemnity: You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms.
15.2 Termination: If a Default Event occurs:
15.2.1 we may, without limiting any other right we have under these Terms, terminate any outstanding Order and any contract for the supply of Goods to you; and
15.2.2 all Payments and any other money under these Terms becomes immediately payable.
15.3 Lawful purpose: You shall ensure that the Goods are used only for lawful purposes and in accordance with any applicable laws.
15.4 Binding: These Terms shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
15.5 Assignment: We may without notice to you assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under these Terms. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms without our prior written consent.
15.6 Time of the essence: Time shall be of the essence in relation to any date or period under these Terms.
15.7 New Terms: If we adopt new terms and conditions for the sale of Goods:
15.7.1 you will be given written notice (if you are a Customer at the relevant time); and
15.7.2 unless otherwise agreed, they will apply to the supply of Goods after you accept such new terms and conditions.
15.8 Variation: We may vary these Terms by providing you 30 days notice.
15.9 Force Majeure: If a Force Majeure Event occurs, we may:
15.9.1 totally or partially suspend any Order, any part of an Order or any deliveries relating to an Order during any period in which we may be prevented or hindered from delivering by our normal means of supply or delivery due to that Force Majeure Event; and
15.9.2 elect to extend at our discretion the period for performance of an obligation under these Terms as is reasonable in all the circumstances.
15.10 Severability: Each clause in these Terms is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
15.11 Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
15.12 Governing law: These Terms shall be governed by the laws of the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales.
16. INTERPRETATION + DEFINITIONS
16.1 Personal pronouns: Except where the context otherwise provides or requires:
16.1.1 the terms we, us or our refers to the Company; and
16.1.2 the terms you or your refers to the Customer.
16.2 Defined terms: In these Terms, unless otherwise provided, the following terms shall have their meaning as specified:
March 2016 4
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Charges means any sales tax, excise duties, customs duty, transfer duty, GST or any other taxes, duties or charges applicable in respect of the provision of the Goods.
Collateral means property that is subject of a security interest.
Company means A Brighter Image Pty Ltd as trustee of the A Brighter Image Unit Trust (ABN 49 820 509 142).
Customer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any one of the following events:
(a) you fail to make any payment when due, whether for the Goods or otherwise;
(b) you become an insolvent under administration or an externally administered body corporate (as relevant) as defined under the Corporations Act 2001 (Cth);
(c) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) above;
(d) a mortgagee or their agent enters into possession of your assets; or
(e) you materially breach a provision of these Terms.
Default Interest means as defined in clause 5.
Delivery means the delivery of the Goods in accordance with clause 6.1.
Force Majeure Event means circumstances beyond our reasonable control, which shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, loss or damage to Goods in transit or instructions or lack of instructions from you.
Goods means goods sold by the Company from time to time.
GST and GST Law have the meaning as set out in the A New Tax System (Goods Tax) Act 1999 (Cth).
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Invoice unless otherwise agreed means the invoice issued upon the delivery of the Goods specified in your Order.
Material means any material in which you have Intellectual Property Rights provided by you for use by us in the production, development and supply of the Goods to you.
Order means an order for Goods received by us, whether in writing or otherwise, in accordance with these Terms.
Payment means payment of any amount relating to Goods in accordance with these Terms.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Quote means a quotation by us for the supply of particular Goods containing details as specified in clause 2.1.
Security Agreement means the security agreement set out in clause 12.
Security Interest means the security interest created in clause 12.
Terms means these terms + conditions of sale.