Terms and Conditions of Supply
- Definitions and interpretation
Conditions means these Terms and Conditions.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Customer means the party to whom the goods and/or services are to be supplied and to whom the attached quotation is addressed.
Goods means any goods supplied by the Supplier and all related or ancillary goods.
Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
Property means all of the Customer’s present and after‐acquired property. It includes anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest.
Related Bodies Corporate has the same meaning as in the Corporations Act 2001.
Services means any services provided by the Supplier and all related or ancillary services.
Supplier means, in connection with the supply of any Goods or Services, Aussie-Asian Pty Limited ABN 55 162 640 717 trading as Oz999 making the supply to Customer.
Supplier Ts&Cs means these terms and conditions of quotation and supply entered into in writing between the Supplier and Customer.
Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what else might be included.
- Structure of this document
(a) These Conditions are intended to regulate key trading terms in connection with the supply of Goods or Services by the Supplier to the Customer.
- Customer obligations
(a) These Conditions apply if the Supplier accepts any order for Goods or Services from the Customer, whether for cash or on credit. The Customer has no entitlement to credit unless in the Supplier’s sole discretion the Supplier extends credit to the Customer. If in a particular case, the Supplier gives the Customer credit, the Supplier still reserves the right at any time and for any reason in the Supplier’s sole discretion to refuse to supply any further Services to the Customer and to refuse to supply any Services to the Customer on credit terms. If the Supplier does decline to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.
(b) If the Customer fails to comply with any of the terms of these Conditions or in respect of any obligation to pay money to the Supplier when due, suffers an Insolvency Event or makes any misrepresentation to the Supplier, the balance of the Customer’s account to the Supplier will become due and payable immediately.
(c) The Customer agrees that it must:
(i) pay, without any deduction or setoff, the price charged by the Supplier for Goods or Services supplied to the Customer on delivery or performance, or, if credit terms are offered, in accordance with the terms detailed in Section 2 hereof.
(ii) pay any stamp duty assessed on this document or fee to register or maintain any security interest held by the Supplier in respect of Services supplied to the Customer.
(iii) advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) as soon as practicable and not later than within two business days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods or Services supplied.
- Overdue accounts and security
(a) Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.
(b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Supplier or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Supplier in connection with the recovery of overdue amounts and enforcing the charge in clause 4(c).
(c) As security for any amounts due to the Supplier from time to time, the Customer grants a purchase money security interest over all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Property to the Supplier.
(d) Without limiting the generality of the charge in clause 4(c), the Customer, agrees, on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier, (including if a beneficial owner, as beneficial owner under the Property Law Act 1974 (Qld) or of any analogous implied term under the applicable governing law) to perfect the charge given in clause 4 (c) including registering a mortgage security over any Real Property. The Customer appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies the Supplier on an indemnity basis against all costs and expenses incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
(e) The Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.
(f) A statement in writing signed by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
(g) The Supplier acknowledges that any payment made for a debt owed to the Supplier is in full satisfaction of the debt owed to it, to the extent of the payment made.
- Retention of title
(a) The Supplier retains legal and equitable title in any Goods and Services supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods and Services has been received by the Supplier. Until payment in full has been received, the following terms apply.
(b) Notwithstanding that title in the Goods and Services remains with the Supplier until payment has been received in full, the Customer may use the Goods and Services in the ordinary course of the Customer’s business.
(c) This reservation of title and ownership is effective whether or not the Goods and Services have been altered from their supplied form, or commingled with other goods.
- Security interest
(a) The retention of title arrangement described in clause 5 also constitutes the grant of a purchase money security interest by the Customer in favour of the Supplier in respect of all present and after-acquired Goods and Services supplied to the Customer by the Supplier.
(b) The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s purchase money security interest is a perfected security interest.
(c) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods and Services or any proceeds from the sale of the Goods and Services until the Supplier has perfected its purchase money security interest.
(d) For any Goods and Services supplied that are not goods and services that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods and Services.
(e) The Customer hereby waives any rights the Customer may otherwise have to:
(i) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135
(ii) apply to a Court for an order concerning the removal of an accession under section 97
(iii) object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135
(iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods and Services supplied to the Customer from time to time.
(f) For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
- Risk
Risk in relation to any Goods and Services passes to the Customer on delivery of the Goods and Services. Delivery of Goods and Services will be in the manner so prescribed by the Supplier from time to time. If the Supplier has expressly agreed to ship the Goods and Services in an alternative manner, risk in the Goods and Services passes immediately on delivery of the Goods and Services in the Customer’s designated manner by the Supplier or its agent.
- Exclusion of implied terms
The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into Supplier Ts&Cs or in connection with the supply of any Goods or Services by the Supplier under law or statute or custom or international convention are excluded.
- Limitation of liability
To the maximum extent permitted by law and subject to clauses 8 and 10, the Supplier’s total liability arising out of or in connection with its performance of its obligations pursuant to these Conditions or arising out of or in connection with the supply of specific Goods and Services (including pursuant to or for breach of these Conditions, Supplier Ts&Cs or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
(a) the Supplier shall have no liability to the Customer for any Consequential Loss;
(b) the Supplier’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Goods and Services that gave rise to the Loss in question. The limitations and exclusions in this sub-clause 9 (b) do not apply to the extent that any Loss is directly attributable to:
(i) the personal injury or death caused by the Supplier’s default, breach of these Conditions or the Supplier Ts&Cs or negligence; or
(ii) fraud by the Supplier.
Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
- Limitation of liability under Australian Consumer Law Guarantees
To the extent that Goods supplied by the Supplier are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Customer agrees that the Supplier’s liability for a failure to comply with a consumer guarantee that the Customer may have a benefit under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of the Supplier, one or more of the following:
(a) replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) equivalent goods; or
(e) the payment of the cost of having the goods repaired.
To the extent that Services supplied by the Supplier are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited to, at the option of the Supplier:
(a) the supply of the Services again; or
(b) the payment of the cost of having the Services supplied again.
- Intellectual Property and Moral Rights
(a) The Customer agrees and acknowledges that the Supplier owns any and all intellectual property in the Goods and/or Services supplied (including but not limited to all work, ideas, concepts, designs, inventions, developments and improvements made during the course of production of the Goods and Services, or with the use of the Supplier’s time, materials or facilities, whether made or conceived alone or with others) and has, to the Customer’s exclusion and that of any person claiming through the Customer, all right, title and interest in such intellectual property rights and, to the extent necessary and permitted by law, the Customer agrees to assign these to the Supplier.
(b) The Customer appoints the Supplier as your attorney to execute on your behalf all documents required to deliver full legal ownership of all intellectual property rights and make applications for patents, registered trademarks or designs in Australia and such other countries as necessary.
(c) The Customer consents to the Supplier infringing any moral rights that the Customer may have or become entitled to in any work created in the course of the Supplier’s engagement by the Customer. For the purpose of this consent, ‘work’ has the meaning given to that term in the Copyright Amendment (Moral Rights) Act 2000 (Cth) and ‘moral rights’ refers to any right arising under the provisions of the legislation.
(d) The termination of the relationship between and the Customer and the Supplier will not, in any way, be regarded as a reassignment of any of the rights and interests referred to in this clause 11 to the Customer or to the Customer’s agent, or as a release of those rights and interests and nothing in this clause 11 detracts from the Customer’s duties under the general law.
- GST
If the Supplier has any liability to pay Goods and Services Tax (GST) on the supply of any Goods or Services to the Customer, the Customer must pay to the Supplier an amount equivalent to the GST liability of the Supplier at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
- Governing law
These Conditions are governed by and are to be interpreted according to the laws in force in Queensland and the parties submit to the non-exclusive jurisdiction of the courts operating in Queensland. The operation of the United Nations Convention on Contracts for the Sale of International Goods is hereby excluded.