1.1 The terms and conditions set out in this document, along with any other written terms and conditions agreed between the parties that are expressed to be supplemental to these terms and conditions or are deemed to be binding in accordance with clause 4.4 (Supplemental Terms), govern the relationship between Allegion (Australia) Pty Ltd (ABN 49 077 898 161) (the Seller) and the person acquiring Goods or Services from the Seller (the Buyer) (the Agreement).
1.2 Capitalised terms that are not otherwise defined have the meaning given to them in clause 25.
1.3 To the extent there is any inconsistency between the terms and conditions contained in this document and any Supplemental Terms, then the Supplemental Terms prevail to the extent of the inconsistency.
1.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.1 Nothing in this Agreement excludes, restricts or modifies or has the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified (Non-Excluded Guarantees).
2.2 Any provision of this Agreement that is inconsistent with a Non-Excluded Guarantee is void to the extent of the inconsistency.
2.3 Nothing in this Agreement will be interpreted to disclaim liability of Seller or the Buyer for gross negligence or wilful misconduct.
Unless otherwise agreed in writing, the term of this Agreement (Term):
(a) commences on the earlier of the date on which the Buyer:
(i) signs a copy of this Agreement; or
(ii) first places an Order for Goods or Services with the Seller; and
(b) ends when this Agreement is terminated in accordance with clause 22.
4.1 The Buyer may request a Quote for Goods or Services from the Seller at any time.
4.2 The Seller may, at its sole discretion, and if applicable subject to clause 5.9, provide the Buyer with a Quote in response to such a request.
4.3 Subject to clause 4.4, a Quote does not bind either party and the Buyer acknowledges that the Seller may vary or amend a Quote at its sole discretion until such time as an Order is accepted by Seller in accordance with clause 5.2.
4.4 If the Seller specifies any additional terms or conditions in a Quote given to the Buyer and the Buyer accepts the Quote by placing an Order, the Buyer shall be taken to have accepted the terms and/or conditions set out in the Quote and those terms and conditions shall prevail over those contained in this Agreement to the extent they are inconsistent or conflict with the terms and/or conditions contained in this Agreement.
5.1 The Buyer may submit an Order for Goods or Services with the Seller at any time.
5.2 The Seller may, at its sole discretion, accept an Order from the Buyer by providing the Buyer with written confirmation that the Order (an “Accepted Order”) has been accepted.
5.3 The Seller may, in its sole discretion, cancel an Accepted Order at any time.
5.4 Subject to clause 5.5, if the Seller cancels an Accepted Order, then the Seller must refund to the Buyer any amounts paid by the Buyer to the Seller with respect to such Order (other than any amounts that relate to Goods that have been dispatched or Services provided as at the date on which the Accepted Order is cancelled) within 60 days.
5.5 If the Seller cancels an Accepted Order in circumstances where the Buyer is in breach of this Agreement, the amount that the Seller is required to pay under clause 5.4 is reduced by any Loss suffered by the Seller as a result of the breach.
5.6 The Buyer may only cancel an Order with the Seller’s prior consent.
5.7 If the Buyer cancels an Order in accordance with clause 5.6
(a) the Buyer indemnifies the Seller against any Losses incurred by the Seller as a result of the cancellation (including any Consequential Loss); and
(b) all outstanding invoices relating to the Order issued up to and including the date on which the order is cancelled are immediately due and payable.
5.8 Subject to the Non-Excluded Guarantees, if the Goods or Services that are the subject of an Order are not, or cease to be, available for any reason, then the Seller may provide alternative Goods or Services to the Buyer that are reasonably fit for purpose.
5.9 The Buyer acknowledges and agrees that:
(a) the Seller may elect to not accept an Order for the supply of Goods on credit until such time as the Buyer has completed a credit application with the Seller and such application has been approved by the Seller with a credit limit established for the account; and
(b) without prejudice to the Seller’s other remedies at law and subject to clause 7 and clause 22.1, in the event that:
(i) the supply of Goods or Services the subject of an Order exceeds or is likely to exceed the Buyer’s credit limit;
(ii) the Buyer has already exceeded their credit limit;
(iii) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
(iv) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; or
(v) the Buyer’s account is in arrears or is otherwise overdue,
the Seller may cease the fulfilment of any outstanding Orders until such time as the aforementioned circumstances no longer exist or require that the Buyer use an alternate method of payment nominated by the Buyer (which must be one of the forms of payment specified in clause 7.4).
6.1 Unless otherwise agreed in writing, the Price for Goods or Services the subject of an Accepted Order is:
(a) if the Seller has provided the Buyer with a Quote for any of the Goods or Services, the amount set out in that Quote; or
(b) if the Seller has not provided the Buyer with a Quote for the Goods or Services, the amount agreed between the Buyer and the Seller based on the Seller’s price list.
6.2 For the avoidance of doubt, the Seller may, at its sole discretion, amend its price list at any time, however, any such amendment will not change the Price of any Accepted Order.
6.3 Unless otherwise stated, the Price in a Quote or in the Seller’s price list is:
(a) in Australian dollars;
(b) exclusive of Shipping Costs; and
(c) exclusive of tax (including GST) and duties (including import duty).
6.4 The parties acknowledge and agree that:
(a) all Prices are calculated taking into account costs incurred by the Seller by third parties, including the cost of freight, insurance, customs duties, exchange rates, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates);
(b) Third Party Rates may have immaterial variations from the date of a Quote to the time of Delivery of Goods or provision of Services; and
(c) the Seller may, at its sole discretion, increase the Price payable by the Buyer after an Order is made to account for any increase in the Third Party Rates.
7.1 Unless otherwise agreed in writing, the Buyer must pay the Price (along with any Shipping Costs, tax (including GST), and/or duty set out in the relevant invoice) for an Accepted Order on the date on which the Goods are Delivered or the Services are rendered (as appliable).
7.2 Unless otherwise confirmed by Seller in writing, payment will only be deemed to have occurred when the relevant amount has cleared in the Seller’s bank account.
7.3 Any amounts that are expressed in a Quote, an invoice, or other document to be discounts to the Price shall become due and payable if payment of all of the amounts referred to in clause 7.1 are not made by the applicable due date.
7.4 Unless otherwise agreed in writing, payments by the Buyer to the Seller must be made by electronic/on-line banking or credit card.
7.5 Any payments made by credit card may incur a surcharge.
7.6 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate).
7.7 For so long as the Buyer owes any outstanding amount to the Seller, the Buyer hereby indemnifies and holds the Seller harmless from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
7.8 In addition to any other rights or remedies the Seller may have under or arising from this Agreement, if the Buyer has made payment to the Seller, and the transaction is subsequently reversed, the Buyer is liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller as a result of the reversal being illegal, fraudulent or in contravention to the Buyer’s obligations under this Agreement.
8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the first of the following events occur:
(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at the Seller’s address;
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated address (even if there is no one present at the address); or
(c) if the Buyer requests that the Seller leave Goods outside a premises (including the Buyer or the Seller’s premises) for collection, when the Seller leaves the Goods in that location.
8.2 The Seller may, at its sole discretion, deliver the Goods in separate instalments and/or provide separate invoices to the Buyer for each instalment.
8.3 Any time frame specified by the Seller (including in a Quote or invoice issued by the Seller to the Buyer) for the delivery of Goods or the provision of Services is an estimate only.
8.4 Subject to the Non-Excluded Guarantees:
(a) the Buyer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery;
(b) any estimate referred to in clause 8.3 is not binding upon the Seller; and
(c) the Seller will not be liable for, and the Buyer waives its right to make a claim against the Seller for, any Loss incurred by the Buyer as a result of delivery being late.
8.5 Where the parties have agreed that an Order is to be collected by the Buyer from the Seller’s premises, the Buyer agrees to collect the order within 30 days.
8.6 If Goods the subject of an Order are unable to be Delivered whenever they are tendered for Delivery or are not collected within the time frame specified in clause 8.5 (as applicable), the Buyer must pay the Seller any reasonable costs incurred by or on behalf of the Seller for the redelivery and/or storage of those Goods until such Goods are delivered or collected by the Buyer.
9.1 Risk in the Goods passes to the Buyer on Delivery.
9.2 The Seller retains full equitable and legal title to the Goods supplied to the Buyer under this Agreement until all money due and payable to the Seller by the Buyer have been fully paid by the Buyer to the Seller.
9.3 The Buyer must ensure that the Goods are fully insured for their replacement value until such time as title in the Goods passes to the Buyer.
9.4 Until title to the Goods passes to the Buyer in accordance with clause 9.2;
(a) the Buyer is only a bailee of the Goods and must return the Goods in the same condition that they were delivered to the Seller on request;
(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and must promptly pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value, however, if the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand;
(d) the Buyer must not convert or process the Goods or comingle them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;
(e) the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods;
(f) the Seller may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Buyer must not encumber or create any security interest over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller;
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
10.1 In this clause “financing statement”, “financing change statement”, “security agreement”, “Personal Property Security Register” and “security interest” have the meaning given to them in the Personal Property Securities Act 2009 (Cth) (“PPSA”).
10.2 The Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
10.3 The Buyer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
(b) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(c) register any other document required to be registered by the PPSA; or
(d) correct a defect in a statement referred to in clause 10.3;
(e) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(f) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(g) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller; and
(h) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 The Seller and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Buyer waives their rights to receive notices under sections 95, 118, 121(4), 125, 130, 132(3)(d) and 132(4) of the PPSA and their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.6 Unless otherwise agreed in writing by the Seller, the Buyer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.7 The Buyer must unconditionally ratify any actions taken by the Seller under this clause 10
10.8 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.9 The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements (including legal costs on a solicitor and own client basis) incurred in exercising the Seller’s rights under this clause.
10.10 The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Buyer’s behalf.
11.1 Except as expressly set out in this Agreement or provided for in the Non-Excluded Guarantees, the Seller makes no warranties or representations whatsoever regarding the quality or suitability of the Goods or Services to be provided under this Agreement.
11.2 Both the Buyer and the Seller represent and warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent, and that this Agreement creates binding and valid legal obligations on them.
11.3 The Buyer acknowledges and agrees that:
(a) it is the Buyer’s sole responsibility for ensuring that any Goods ordered by it are suitable for the Buyer’s intended use;
(b) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Seller’s fact sheets, price lists or advertising material, are approximate only and are provided solely as a means to distinguish and identify the relevant product in general terms;
(c) the Buyer has not and is not entitled to rely on any information referred to in clause 11.3(b), and any use of such material does not constitute a sale by description, and does not form part of the Agreement, unless expressly stated in writing by the Seller; and
(d) while the Seller may have provided information or figures to the Buyer regarding the performance of the Goods, the Buyer acknowledges that the Seller has given these in good faith and they are estimates only based on the prescribed standards.
The Seller makes no representation or warranty to the Buyer that the Goods shall not infringe any intellectual property rights including, without limitations, claims arising from patent, copyright, trademark, trade secret, or other intellectual property infringement. The Buyer agrees to hold the Seller harmless from and defend the Seller against any such claim of intellectual property infringement, including any Loss resulting from that claim, the cost of complying with any preliminary or permanent injunction, and all other costs of defense (including the attorneys’ fees and costs), in connection with the foregoing.
13.1 The Buyer must:
(a) inspect the Goods on Delivery;
(b) notify the Seller in writing of any defects evident in the Goods at the time the Goods are inspected in accordance with clause 13.1(a); and
(c) notify the Seller in writing of any other defects in the Goods as soon as reasonably possible after any such defect becomes evident.
13.2 If the Buyer notifies the Seller of a defect under clause 13.1 the Buyer must allow the Seller to inspect the Goods as soon as reasonably practicable.
13.3 Subject to the Non-Excluded Guarantees and unless this contract is a consumer contract or small business contract for the purposes of the ACL (in which case the ACL applies), the Seller’s liability with respect to Goods or Services supplied by it is limited to:
(a) the terms of any express warranty or warranty card relating to the Goods or Services (if any) provided to the Buyer by the Seller; and
(b) making good any defects arising solely from faulty materials or workmanship, limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods.
13.4 Notwithstanding the foregoing, Seller shall not be liable for any defect or damages which may be caused or partially caused by or as a result of:
(a) the Buyer failing to properly maintain or store any Goods;
(b) the Buyer using the Goods for any purpose other than that for which they were designed;
(c) the Buyer continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Buyer failing to follow any instructions or guidelines provided by the Seller; and
(e) fair wear and tear, any accident, or act of God.
13.5 Subject to the Non-Excluded Guarantees:
(a) if the Buyer does not comply with its obligations under clauses 13.1 and 13.2 with respect to a defect, the
Seller will have no further liability with respect to that defect;
(b) the Seller’s obligation to ‘make good’ on any defects under clause 13.3(b), is limited to (at the Seller’s option), repairing the defects, replacing the defective Goods, or refunding the Price; and
(c) the Seller is under no obligation to refund or replace any Goods on the basis that the Buyer has changed its mind with respect to the Goods.
13.6 The Seller may (at its sole discretion) accept non-defective Goods for return on such terms and conditions as it sees fit and may require the Buyer to pay handling fees of twenty percent (20%) of the Price of the returned Goods plus any freight costs. Subject to 13.1, customised, or non-stocklist items or incidental items made or ordered to the Buyer’s specifications are not acceptable for credit or return.
13.7 Subject to the Non-Excluded Guarantees, the parties acknowledge and agree that:
(a) the Seller’s liability under this Agreement:
(i) is limited to the fullest extent permitted by law; and
(ii) notwithstanding anything to the contrary in this Agreement, shall not exceed the total Price paid by the Buyer to the Seller under this Agreement; and
(b) the Seller has no liability whatsoever for any Consequential Loss, including any Consequential Loss arising out of a breach by the Seller of these terms and conditions.
14.1 Any of the Seller’s Intellectual Property Rights remain the property of the Seller and nothing in this Agreement operates to assign, novate or otherwise transfer any such rights to the Buyer.
14.2 The Buyer represents and warrants to the Seller that the Seller’s use of any material provided to it by the Buyer for the purposes of developing, modifying or improving any goods or services (including any designs, specifications or instructions) will not result in the Seller infringing any Intellectual Property Rights of any person and the Buyer indemnifies the Seller against any Loss incurred by the Seller as a result of any breach or infringement by the Seller.
14.3 Subject to clause 14.4, neither party may use the others Intellectual Property Rights without the express written approval of the other party.
14.4 Notwithstanding clause 14.3, the Seller may use, at no cost, any documents, designs, drawings or Goods created by it for the Buyer for the purposes of implementing this Agreement, marketing or entry into any competition or exhibition.
14.5 With effect on and from the date of this agreement, the Buyer assigns to the Seller, and the Seller accepts the assignment of, free from Encumbrances:
(a) all of the Buyer’s present right, title and interest in and to Specified Intellectual Property, with all of the Buyer’s future right, title and interest in and to the Intellectual Property vesting in the Seller upon creation, development or acquisition;
(b) all of the Buyer’s rights to apply for any form of registration in respect of, or to assign, the Specified Intellectual Property; and
(c) the right to take any action that the Buyer has had, may have had, against any person, to recover damages, an account of profits or other relief, for any infringement or misuse in relation to the Specified Intellectual Property, including for any infringement or misuse prior to the assignment, regardless of whether or not the Buyer is aware of any particular infringement or misuse.
14.6 If requested by the Seller, the Buyer must, at the Seller’s expense, promptly do all things necessary (including procuring any person to do any thing or execute any document) in order to effectively assign the Seller’s rights, title and interest in and to the Specified Intellectual Property.
14.7 To the extent that the Buyer has any Moral Rights with respect to the Specified Intellectual Property, the Buyer unconditionally consents to the Seller, its licensees and successors in title and any person authorised by the Seller, to do or omit to do, anything in relation to the Specified Intellectual Property, which, but for this consent, would otherwise amount to an infringement of the Moral Rights of the Buyer.
14.8 To the extent any other person has any Moral Rights with respect to the Specified Intellectual Property, the Buyer represents and warrants that it has received an irrevocable waiver of Moral Rights in favour of the Seller on substantially the same terms as that set out in clause 14.7 (where the reference to Buyer is a reference to the person who has relevant Moral Rights).
15.1 Both the Buyer and the Seller agree that they will at all times ensure that they comply with the provisions of all
Laws that are applicable to the matters contemplated by this Agreement, including occupational health and safety laws, and any other relevant safety standards or legislation.
15.2 In advertising, marketing, promoting, sales and installation of the Goods and in carrying on the Buyer’s business, the Buyer, its owners, officers, directors, employees or agents (collectively and individually in this clause “Buyer”) must comply with its, his or her obligations under the law including without limitation, the Buyer must not make any untrue or misleading statement relating to the Seller, its goods and services including the Goods, its business or its practices.
15.3 The Buyer represents and warrants that it has not and covenants that it will not pay, offer or promise to pay, or authorise the payment of, any monies or anything of value, directly or indirectly, to any government official or employee, any official or employee of a state-run or state-owned or controlled enterprise or entity, any official or employee of a public international organisation, any candidate for political or public office, any official or employee of any political party, or any family member or relative of such persons or any political party for the purpose of influencing any act or decision of any such official, employee, candidate, political party, enterprise or entity, public organisation, or government to obtain or retain business, or direct business to any person or entity, or for any other improper advantage or purpose.
15.4 If the Buyer is a distributor or business partner of Seller, the Buyer represents and warrants that:
(a) it has read and complies with the Allegion Code of Conduct for Business Partners, available at Code of Conduct for Business Partners -3-30-22.pdf (allegion.com) and
(b) the Buyer acknowledges and agrees that the Seller may conduct reasonable audits during normal business hours to ensure that its business partners conduct business in an ethical and legally compliant manner and in accordance with the Allegion Code of Business Partner Conduct.
15.5 If the Buyer breaches their obligations under this clause 15, the Seller may immediately terminate this Agreement and the Buyer shall indemnify and hold harmless the Seller against any Loss incurred by the Seller in connection with the breach.
16.1 Each party must keep secret and confidential, and not divulge or disclose any information relating to another party or its business (which is disclosed to the recipient by the other party, its representatives or advisers) or this Agreement other than to the extent that:
(a) the information is in the public domain as at the date of this Agreement (or subsequently becomes in the public domain other than by a breach of any obligation of confidentiality binding on the recipient);
(b) the recipient is required to disclose the information by applicable law or the rules of any recognised stock exchange on which its shares or the shares of any of its related bodies corporate are listed or compulsion from any Governmental Agency, provided that the recipient has (to the extent possible having regard to the required timing of the disclosure) consulted with the provider of the information as to the form and content of the disclosure;
(c) the disclosure is made by the Seller to its financiers or lawyers, accountants, investment bankers, consultants or other provisional advisers;
(d) the disclosure is required for in legal proceedings;
(e) the disclosure has been consented to by in writing before the disclosure; or
(f) the disclosure is necessary to allow a party to perform its obligations under this Agreement.
16.2 Any Quote and the information contained in any Quote provided by the Seller to the Buyer is provided on a “commercial in confidence” basis and the Buyer agrees not to reproduce or provide the Quote or any information contained therein to any third party without the prior written approval of the Seller.
17.1 The Buyer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Buyer in relation to credit provided by the Seller.
17.2 The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Buyer;
(b) to notify other credit providers of a default by the Buyer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; or
(d) to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two (2) years.
17.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
17.4 The Buyer agrees that personal credit information provided may be used and retained by the Seller for the following purposes:
(a) the provision of Goods;
(b) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods;
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer;
(d) enabling the collection of amounts outstanding in relation to the Goods; or
(e) anything reasonably ancillary or incidental to the above matters.
17.5 The Seller may give information about the Buyer to a CRB for the following purposes:
(a) to obtain a consumer credit report; or
(b) to allow the CRB to create or maintain a credit information file about the Buyer including credit history.
17.6 The information given to the CRB may include:
(a) personal information as outlined in 17.1 above;
(b) name of the credit provider and that the Seller is a current credit provider to the Buyer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Buyer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Seller, the Buyer has committed a serious credit infringement; or
(h) advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
17.7 The Buyer shall have the right to request (by e-mail) from the Seller:
(a) a copy of the information about the Buyer retained by the Seller and the right to request that the Seller correct any incorrect information; and
(b) that the Seller does not disclose any personal information about the Buyer for the purpose of direct marketing.
17.8 The Seller will destroy any personal information of the Buyer upon the Buyer’s written request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Agreement or is required to be maintained and/or stored in accordance with the law.
17.9 The Buyer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Buyer is not satisfied with the resolution provided, the Buyer can make a complaint to the Information Commissioner at www.oaic.gov.au
18.1 The Buyer must give the Seller at least fourteen (14) days prior written notice of:
(a) any proposed change in the control (as that term is defined in the Corporations Act 2001 (Cth)) of the Buyer; or
(b) any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, email address, contact phone or fax number/s or change of trustee).
18.2 The Buyer shall be liable for any Loss incurred by the Seller as a result of the Buyer’s failure to comply with clause 18.1.
19.1 Only Authorised Sellers may resell Goods.
19.2 If the Buyer is an Authorised Seller, it must, at its own expense, gain and maintain sufficient knowledge of the industry and products competitive with Goods so as to be able to:
(a) explain in detail to End Users, installers, and/or general contractors the differences between the Goods and competing products;
(b) ensure that an adequate number of trained, capable and qualified technical personnel with sufficient knowledge of the Goods and who have obtained all necessary licenses and permits are available to assist End Users, installers, and/or general contractors; and
(c) respond to such End Users, installers, and/or general contractors with respect to the general operation and use of the Goods including, but not limited to:
(i) acting as a liaison between the End Users, installers and/or general contractors and the Seller in matters requiring the Seller participation;
(ii) providing general product information and configuration support on standard protocols and features;
(iii) collecting relevant technical problem identification information; and
(iv) posting and distributing any warranty information concerning the Goods in accordance with Seller’s instructions.
19.3 The Buyer is responsible for all service and support resulting from the re-sale of any Good to End-Users, installers and/or general contractors, examples of which may include, but are not limited to, support activities such as installation, initialization, software set-up, training, trouble-shooting, technical support and field service.
19.4 In the event Buyer is unwilling or unable to perform the service and support activities referred to in clause 19.3, the Seller reserves the right to recover from the Buyer any and all expenses incurred by the Seller to provide the relevant service and support activities.
If the Buyer enters into this Agreement in its capacity as the trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Buyer represents and warrants to the Seller that the Buyer:
(a) has a right of indemnity against the trust property that is sufficient to allow the Buyer to meet all of its obligations under the terms of this Agreement;
(b) has full and complete power and authority under the Trust to enter into this Agreement and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust;
(c) has not and will not release its right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; and
(d) will not, without the Seller’s prior written consent (such consent not to be unreasonably withheld), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Buyer as trustee of the Trust; or
(ii) any alteration to or variation of the terms of the Trust.
This Agreement may only be amended by:
(a) mutual written agreement of the Buyer and the Seller; or
(b) the Seller, provided that the Seller provides the Buyer with 30 days prior written notice of the amendment and the amendment does not relate to any Accepted Orders.
22.1 Subject to clauses 22.2, 22.3, and 22.4:
(a) unless otherwise agreed in writing, this Agreement automatically terminates when the Buyer and the Seller have complied with their respective obligations under clauses 5, 7, and 8 with respect to all Accepted Orders;
(b) the Seller may terminate this Agreement if the Buyer:
(i) has failed to make a payment when due or where the Seller reasonably believes that the Buyer will be unable to make a payment when it falls due;
(ii) the Buyer exceeds any applicable credit limit provided by the Seller;
(iii) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
(iv) the Buyer has a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of it or any of its assets;
(v) fails to perform any of its other obligations under this Agreement; or
(vi) the Buyer undergoes a change of control without the Seller’s prior written consent in accordance with clause 18.1(a).
22.2 If a party seeks to terminate this Agreement in circumstances where the Seller has not discharged all of its obligations with respect to an Accepted Order, then this Agreement continues to have full force and effect until such time as the Buyer and the Seller fulfil all of their obligations under this Agreement with respect to that Accepted Order.
22.3 Subject to the Non-Excluded Guarantees, the Seller will be deemed to have satisfied all of its obligations under this Agreement with respect to an Accepted Order for the purposes of clause 22.2 if it exercises its right under clause 5.3 to cancel the Accepted Order and complies with its obligations under clause 5.4 with respect to that Order.
22.4 Subject to the Non-Excluded Guarantees and clauses 22.2, 22.3, and 22.4, the Seller shall have no liability to the Buyer for any Loss arising out of or in connection with the Seller’s exercise of its rights under clause 22.1(b).
22.5 Clauses 2, 3, 7, 9, 12, 14, 16 and 24 survive termination of this Agreement.
23.1 Any written notice given under this Agreement shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the other party’s registered business address or the address of that party as stated in this Agreement;
(c) by sending it by registered post to the other party’s registered business address or the address of the other party as stated in this Agreement;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Agreement (if any), on receipt of confirmation of the transmission; or
(e) if sent by email to the other party’s last known email address.
23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
24.1 The parties agree that any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall, at the Seller’s sole discretion, be submitted to, and settled by, arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s).
24.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
24.3 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
24.4 These terms and conditions and any contract to which they apply shall be governed by the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
24.5 The Seller may licence, assign or subcontract all or any part of its rights or obligations under this Agreement in its sole discretion and without the Buyer’s consent.
24.6 The Buyer may not licence, assign or subcontract all or any part of its rights and/or obligations under this Agreement without the prior written consent of the Seller.
24.7 Time is of the essence with respect to the Buyer’s obligations under this Agreement.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action/riot/civil commotion, robbery, fire, flood, pandemic, storm, supply chain delays or disruptions, or other event beyond the reasonable control of either party, and the Seller:
(a) shall not be liable for any claims for non-fulfilment or late Delivery should actual Delivery (or any parts) be delayed in consequence of unforeseen events under this clause 24.8 and unforeseen breakdown of machinery (save where caused by improper maintenance or operation by untrained personnel), suspension of electricity or other relevant power supply adverse non-foreseeable weather conditions, action of government or port authority, delay of vessel, railroad embargoes, in ability to obtain transportation facilities or due to failure of an original equipment manufacturer to supply components by the due date; and
(b) shall be entitled (at its option) to terminate this Agreement or extend the time for performance.
24.9 This Agreement binds the Buyer, Seller and each of their executors, administrators, successors and permitted assigns.
“Accepted Order” has the meaning given to it in clause 5.2.
“ACL” means the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Agreement” has the meaning given to it in clause 1.1.
“Authorised Seller” means those parties that have been duly authorized by Seller to resell the Goods as ordinary trade.
“Buyer” has the meaning given to it in clause 1.1.
“Consequential Loss” means special, indirect or consequential loss or damage including loss of profit.
“Goods” means all goods supplied by the Seller to the Buyer at the Buyer’s request from time to time.
“Governmental Agency” means any government (whether federal, state, territory, or local) or governmental, semi-governmental, fiscal, administrative or judicial body, department, commission, authority, instrumentality, tribunal, agency or entity in any part of the world.
“End User” means a person to whom an Authorised Seller sells a Good that’s supplied to the Authorised Seller under this Agreement.
“GST” means Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Law” includes any statute, legislation, law, modern award, industrial instruments, regulation, by-law, scheme, determination, ordinance, rule or other statutory provision of any jurisdiction in which the Buyer or the Seller operate.
“Loss” means losses, liabilities, damages, costs, charges and expenses and includes taxes, duties and tax-related costs.
“Intellectual Property Rights” means intellectual and industrial property rights and interests throughout the world, whether registered or unregistering, including trade marks, designs, patents, inventions, circuit layouts, copyright and analogues rights, confidential information, known-how and all other intellectual property rights as defined in Article 3 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
“Moral Rights” means the moral rights of the creator of copyright works (including, without limitation, the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship) under the Copyright Act 1968 (Cth), and any similar rights existing under any foreign laws.
“Non-Excluded Guarantees” has the meaning give to it in clause 2.1
“Order” means a written order for Goods or Services made by or on behalf of the Buyer to the Seller.
“Price” means the amount payable by the Buyer for Goods or Services as calculated in accordance with clause 6.
“Quote” means a written document provided by the Seller to the Buyer containing out a description of Goods or Services to be provided by the Seller to the Buyer and which may also include terms and conditions which apply to the provision of those Goods and Services and an estimate of the Price for the provision of those Goods or the Services.
“Seller” has the meaning given to it in clause 1.1.
“Services” means any services provided by the Seller to the Buyer at the Buyer’s request from time to time.
“Shipping Costs” means:
(a) if an amount is specified as being payable for shipping in a Quote, that amount; otherwise
(b) if an amount is not specified as being payable for shipping in a Quote:
(i) if the Price for the Order exceeds $150 or more, nil; and
(ii) if the Price for the Order is less than $150, $30 plus any applicable GST.
“Specified Intellectual Property” means any Intellectual Property Rights in any material provided to Seller by the Buyer for the purposes of developing, modifying or improving any goods or services (including any designs, specifications or instructions).
“Supplemental Terms” has the meaning given to it in clause 1.1.
“Term” has the meaning given to it in clause 3
“Third Party Rates” has the meaning given to it in clause 6.4.
