In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended;
“Agreement” means any agreement for the provision of goods or services by the Seller to the Buyer;
“Buyer” means the person, jointly and severally if more than one, acquiring goods or services from the Seller;
“consumer” is as defined in the ACL and in determining if the Buyer is a consumer, the determination is made if the Buyer is a consumer under the Agreement;
“Goods” means goods supplied by the Seller to the Buyer;
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
“Intellectual Property” means all copyright, patents, trademarks, designs, names, formulae, Specifications, confidential information, and all modifications, improvements, and enhancements (whether registrable or not) owned by or licensed to the Seller in respect of the goods or services;
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended;
“Seller” means N.Q Co-Op Ltd (ABN 54 055 881 546) and each of its subsidiaries, divisions, affiliates, associated companies, and related entities;
“services” means services supplied by the Seller to the Buyer;
“Site” means any site at which services are to be performed;
“Specifications” means all drawings, illustrations, descriptive matter, and particulars contained in the Seller’s catalogs, price lists, and marketing documents; and
“Terms” means these Terms and Conditions of Trade.
2.Basis of Agreement
- Unless otherwise agreed by the Seller in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Buyer’s terms and conditions of purchase (if any).
- Any quotation provided by the Seller to the Buyer for the proposed supply of goods or services is:
- valid for 30 days;
- an invitation to treat only; and
- only valid if in writing.
- The Terms may include additional terms in the Seller’s quotation, which are not inconsistent with these Terms.
- An Agreement is accepted by the Seller when the Seller accepts, in writing or electronic means, an offer from the Buyer or provides the Buyer with the goods or services.
- The Seller has absolute discretion to refuse to accept any offer.
- The Buyer must provide the Seller with its specific requirements, if any, in relation to the goods and services.
- The Seller may vary or amend these Terms by written notice to the Buyer at any time. Any variations or amendments will apply to orders placed after the notice date.
- Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services. In addition to payment of the price of goods and services, the Buyer must pay any GST and any other taxes or duties imposed on the goods and services.
- Prices for goods and services are set in accordance with the Seller’s price list as amended from time to time.
- If the Buyer requests any variation to the Agreement, the Seller may increase the price to account for the variation.
- Where there is any change in the costs incurred by the Seller in relation to goods or services, the Seller may vary its price to take account of any such change, by notifying the Buyer.
- Cash (non-account) Customers– The Seller requires all cash (non-account customer) sales to be paid in full prior to the goods and services being released to the Buyer.
- Account Customers– Unless otherwise agreed in writing by the Seller:
- Subject to 4.2(b), full payment for the goods or services must be made within 30 days of the date of the Seller’s invoice.
- The Seller reserves the right to require payment in full on delivery of the goods or completion of the services.
- Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
- Payment terms may be revoked or amended at the Seller’s sole discretion immediately upon giving the Buyer written notice.
- The time for payment is of the essence.
- If the Buyer defaults in payment by the due date of any amount payable to the Seller, then all money which would become payable by the Buyer to the Seller at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Buyer, and the Seller may, without prejudice to any of its other accrued or contingent rights:
- charge the Buyer a late payment fee on any sum due at a rate from time to time determined by the Seller but not exceeding 18 percent per annum or 2 percent per annum above Westpac’s credit card rate (whichever is the greater) for the period from the due date until the date of payment in full;
- charge the Buyer for, and the Buyer must indemnify the Seller from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
- cease or suspend supply of any further goods or services to the Buyer;
- by written notice to the Buyer, terminate any uncompleted contract with the Buyer.
- Clauses 5.1(c) and (d) may also be relied upon, at the Seller’s option:
- where the Buyer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
- where the Buyer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver, manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Buyer.
6.Passing of Property
- Until the Seller receives full payment in cleared funds for all goods and services supplied by it to the Buyer, as well as all other amounts owing to the Seller by the Buyer:
- title and property in all goods remains vested in the Seller and does not pass to the Buyer;
- the Buyer must hold the goods as fiduciary bailee and agent for the Seller;
- the Buyer must keep the goods separate from its own goods and maintain the Seller’s labeling and packaging;
- the Buyer must hold the proceeds of any sale of the Goods on trust for the Seller in a separate account with a bank to whom the Buyer has not given security however failure to do so will not affect the Buyer’s obligation to deal with the proceeds as trustee;
- in addition to its rights under the PPSA, the Seller may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the Seller, and for this purpose, the Buyer irrevocably licenses the Seller to enter such premises and also indemnifies the Seller from and against all costs, claims, demands or actions by any party arising from such action.
7.Personal Property Securities Act
- Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
- For the purposes of the PPSA:
- terms used in this clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
- these Terms are a security agreement and the Seller has a Purchase Money Security Interest in all present and future goods supplied by the Seller to the Buyer and the proceeds of the goods;
- The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Buyer at any particular time;
- the Seller has, where applicable, an agricultural PMSI in relation to the goods supplied by the Seller to the Buyer; and
- the Buyer must do whatever is necessary in order to give a valid security interest over the goods and their proceeds which is able to be registered by the Seller on the Personal Property Securities Register.
- The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from the Seller’s premises and not at any later time.
- Where permitted by the PPSA, the Buyer waives any rights to receive the notifications, verifications, disclosures, or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
- The Seller and the Buyer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142, and 143 of the PPSA will apply to these Terms.
- To the extent permitted by the PPSA, the Buyer agrees that:
- the provisions of Chapter 4 of the PPSA which are for the benefit of the Buyer or which place obligations on the Seller will apply only to the extent that they are mandatory or the Seller agrees to their application in writing; and
- where the Seller has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
- The Buyer must immediately upon the Seller’s request:
- do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
- procure from any person considered by the Seller to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Seller may at any time require.
- The Seller may allocate amounts received from the Buyer in any manner the Seller determines, including in any manner required to preserve any Purchase Money Security Interest or any Agricultural PMSI it has in goods supplied by the Seller.
8.Risk and Insurance
- The risk in the goods and all insurance responsibility for theft, damage, or otherwise will pass to the Buyer immediately on the goods being delivered to the Buyer or taken from the Seller’s premises.
- The goods are sold to the Buyer on the basis that the Buyer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
- The Buyer assumes all risk and liability for loss, damage, or injury to persons or to the property of the Buyer, or third parties arising out of the use, installation, storage, or possession of any of the goods sold by the Seller, unless recoverable from the Seller on the failure of any statutory guarantee under the ACL.
- Any warranties given by the Seller with respect to the goods are set out on the packaging in which the goods are supplied or in enclosures supplied with the goods.
10.Performance of Agreement
- Any period or date for delivery of goods or provision of services stated by the Seller is an estimate only and not a contractual commitment.
- The Seller will use its reasonable endeavors to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Buyer or any third party for failure to meet any estimated date.
- If the Seller cannot complete the services by any estimated date, it will do so within a reasonable time.
- Subject to clause 11.6, the Seller will arrange for the delivery of the goods to the Buyer.
- Unless otherwise agreed, the Buyer is responsible for all costs associated with delivery, including freight, insurance, and other charges arising from the point of dispatch of the goods to the Buyer to the point of delivery.
- The Seller may make part delivery of goods and services and may invoice the Buyer for the goods or services so delivered or completed.
- The Buyer indemnifies the Seller against any loss or damage suffered by the Seller, its subcontractors, or employees as a result of delivery, except where the Buyer is a consumer and the Seller has not used due care and skill.
- If delivery is attempted and is unable to be completed, the Buyer is deemed to have taken delivery of the goods. The Buyer is liable for storage charges payable monthly on demand.
- If agreed that the Buyer will collect the goods:
- the Buyer must collect the goods within 7 days of being advised that they are ready;
- if the Buyer does not collect the goods within this time, the Buyer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
- The Buyer must provide suitable and practical means of access to the Site and ensure that the Site is suitably prepared for the provision of the Services.
- The Buyer indemnifies the Seller against any loss or damage suffered by the Seller, its subcontractors, or employees as a result of providing the services, except where the Buyer is a consumer and the Seller has not used due care and skill.
- Where the Seller provides the services at the Site, the Buyer warrants that it is the owner of the Site or is authorized to request the services be conducted at the Site and that it has all of the required permissions, permits, approvals, and authorizations for this to occur.
- At no time does the Seller take or accept any ownership of or responsibility for the Site. All risk and liability in and relating to the Site remains with the Buyer at all times.
- Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition, or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
- If the Buyer is a consumer, nothing in these Terms restricts, limits, or modifies the Buyer’s rights or remedies against the Seller for the failure of a statutory guarantee under the ACL.
- If the Buyer on-supplies the goods to the consumer:
- if the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Seller’s liability to the Buyer;
- if the goods or services are of a kind ordinarily acquired for personal, domestic, or household use or consumption, then payment of any amount required under section 274 of the ACL is the absolute limit of the Seller’s liability to the Buyer, howsoever arising under or in connection with the sale, installation, use of, possession of, storage of, or any other dealings with the goods or services by the Buyer or any third party.
- If clause 2 or 13.3 does not apply, then other than as stated in the Terms or any written warranty statement, the Seller is not liable to the Buyer in any way howsoever arising under or in connection with the sale, installation, use of, possession of, storage of, or any other dealings with the goods or services by the Buyer or any third party.
- The Seller is not liable for any indirect or consequential losses or expenses suffered by the Buyer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
- The Buyer acknowledges that:
- it has not relied on any service involving skill and judgment, or on any advice, recommendation, information, or assistance provided by the Seller in relation to the goods or services or their use or application.
- it has not made known, either expressly or by implication, to the Seller any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for its use.
- Nothing in the Terms is to be interpreted as excluding, restricting, or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be so excluded, restricted or modified.
- If the seller is unable to deliver or provide the goods or services, then it may cancel the Buyer’s order (even if it has been accepted) by written notice to the Buyer.
- No purported cancellation or suspension of an order or any part of it by the Buyer is binding on the Seller once the order has been accepted.
15.Shortages and Exchanges
- Subject to clause 15.2 and 15.4, the Seller will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Buyer notifies the Seller with full details and description within 10 days of delivery. Otherwise, the Buyer is deemed to have accepted the goods.
- When any shortages, claim for damaged goods, or non-compliance with the Agreement specifications is accepted by the Seller, the Seller may, at its option, repair the goods, replace the goods, or refund the price of the goods.
- Subject to clause 15.4, the Seller will not under any circumstances accept goods for return that:
- have been specifically produced, imported, or acquired to fulfill the Agreement;
- are discontinued goods or no longer stocked by the Seller;
- have been altered in any way;
- have been used; or
- are not in their original condition and packaging.
- If the Buyer is a consumer, nothing in this clause 15 limits any remedy available for a failure of the statutory guarantees in sections 56 and 57 of the ACL.
- All Specifications are indicative only may not be current nor accurate. The Buyer acknowledges that it has not relied on the Specifications in making its purchasing decision.
- The Buyer acknowledges that it has no proprietary right or interest in the Intellectual Property.
- The Buyer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof nor any patents, inventions, trademarks or designs derived from or similar to it, nor aid or abet anyone else in doing so.
- The Buyer must not at any time create, sell, manufacture or process any products using or taking advantage of the Intellectual Property.
- Any Intellectual Property provided to the Buyer by the Seller in connection with the goods or services remains the exclusive property of the Seller and must be returned to the Seller on demand. The Buyer must not copy nor communicate the Intellectual Property to any third party without the Seller’s express prior written consent.
- The Seller is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control, including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism, or acts of war. If an event of force majeure occurs, the Seller may suspend or terminate the Agreement by written notice to the Buyer.
- The law of Queensland from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Queensland, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
- The Seller’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Seller’s
- If a clause is unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, it must be severed from these Terms without affecting the enforceability of the remaining terms.
- A notice must be in writing and handed personally or sent by facsimile, email, or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received upon confirmation of successful transmission.