Goods and/or Services supplied by BizMac Designs Pty Ltd trading as ELECTRONIC SIGNAGE AUSTRALIA (ABN 60 163 569 453) (“Supplier”) are sold on these terms and conditions (“Terms”). These are the only terms which are binding on the Supplier with the exception of those otherwise agreed in writing by the Supplier or which are imposed by a statute and which cannot be excluded.
The Customer is taken to have accepted and is immediately bound by these Terms if the Customer places an order for or accepts delivery of Goods and/or Services. An agreement exists between the Customer and the Supplier on the day the Supplier accepts from the Customer an order for or supplies Goods and/or Services to the Customer. These conditions shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.
The terms of payment are:
payment by the Customer to the Supplier of 50% deposit before dispatch (unless the Customer and Supplier have agreed upon different terms regarding payment of a deposit);
payment by the Customer to the Supplier of 40% once stock received by Supplier;
payment by the Customer to the Supplier of 10% upon commissioning; and
payment by the Customer to the Supplier of the amounts noted in sub-clauses 2.1(a), (b) and (c) above on or before the date nominated on the quotation/order form or invoice in which the Goods and/or Services are supplied or ready to be supplied.
The Supplier must request an upfront deposit in the amount specified on any quotation/order form provided by the Supplier.
The parties agree that the Price does not include GST, taxes, duties, fees or other government levies and charges which may be imposed. Any GST, taxes, duties, fees or other government levies and charges will be additional to the Price and must be paid by the Customer.
The Supplier may use payments to satisfy older debts, even if otherwise stated in the Customer’s terms. The Supplier will inform the Customer about any such set-offs. If the Customer has already incurred costs and interest, the Supplier will be entitled to set off the payment, first with costs, then with any applicable interest and finally with the principal performance.
The Customer is not entitled to make any deduction from amounts owing to the Supplier in respect of any set off or counterclaim to be held back for retention.
The Supplier’s invoice or quotation is on a supply and commissioning basis only. Installation is at the expense of the Customer unless otherwise specified in writing by the Supplier.
The Supplier reserves the right to change the Price as published in its Price List from time to time.
A quotation is not to be construed as an obligation to sell but merely as an invitation to treat and no contractual relationship shall arise from it.
Delivery, inspection and risk
Delivery shall take place when the Customer takes possession of the Goods. The means of delivery is at the Supplier’s sole discretion.
At the Supplier’s sole discretion, the costs of delivery are for the Customer’s account. The delivery times made known to the Customer are estimates only and the Supplier is not liable for late delivery or non-delivery.
The Supplier is not liable for any loss, damage or delay occasioned to the Customer or its buyers arising from late or non-delivery or late installations of the Goods.
The Customer must inspect all Goods on arrival and within forty-eight (48) hours of arrival give notice with full details and description to the Supplier if the Customer alleges that the Goods are not in accordance with the Customer’s order, as described on the quotation and order form or as varied by agreement between the parties. Failing such notice, the Goods shall be deemed to have been accepted by the Customer. When the Supplier agrees that any Goods are not in accordance with the Customer’s order, the Supplier may at its option replace the Goods, repair the Goods, or refund the price of the Goods.
Irrespective of whether the Supplier retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery.
The Supplier and the Customer agree that ownership of the Goods shall not pass to the Customer until the Customer has paid to the Supplier all amounts owing to the Supplier for the Goods and for any other supply of Goods and/or Services, and the Customer has met all of its other obligations to the Supplier.
Receipt of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared and recognised.
The parties agree that, until ownership of the Goods passes to the Customer:
The Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;
The Customer holds the benefit of its insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance if the Goods are lost, damaged, destroyed or otherwise generate insurance proceeds;
The Customer must not sell, dispose of or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes of or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
The Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes that the Goods are kept and recover possession of the Goods;
The Supplier may recover possession of any Goods in transit whether or not delivery has occurred;
The Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
The Supplier may commence proceedings to cover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Supplier.
Without prejudice to any lien conferred by law or equity, the Supplier has a lien upon any terms of personal property in its actual or constructive possession provided to it by the Customer. The lien secures any and all moneys owing to it by the Customer in connection with the Agreement.
Personal Property Securities Act (“PPSA”)
In this clause, terms used have the same meaning given to them by the PPSA.
The Customer acknowledges and agrees that the Agreement constitutes a security agreement for the purposes of the PPSA and creates a security interest in:
all Goods previously supplied by the Supplier to the Customer (if any); and
all Goods that will be supplied in the future by the Supplier to the Customer.
The security interest includes any proceeds of the Goods and all registration and enforcement costs incurred by the Supplier.
The Customer consents to the Supplier effecting a registration on the PPSR of any security interest arising under or in connection with the Agreement.
The Customer undertakes to:
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 Supplier may reasonably require to:
Register a financing statement or financing change statement in relation to a security interest on the PPSR;
Register any other document required to be registered by the PPSA; or
Correct a defect in a statement referred to above;
Indemnify and upon demand reimburse the Supplier for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods thereby charged;
Not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier; and
Immediately advise the Supplier 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.
The parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement between the Supplier and the Customer.
The Customer waives its right to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives its rights as a grantor and/or debtor under sections 142 and 132 of the PPSA.
Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer must unconditionally ratify any actions taken by the Supplier under this clause.
Subject to any express provisions to the contrary nothing in these Terms is intended to have the effect of contracting out of any of the provisions of the PPSA.
Negligence, Liability, Warranties and Competition and Consumer Act
To the extent permitted by law, the Supplier is not liable to the Customer in contract or in tort arising out of, or in connection with, or relating to:
The performance of the Goods and/or Services or any breach of these conditions;
Any fact, matter or thing relating to the Goods and/or Services; or
Any error (whether negligent or in breach of contract or not) in information supplied to the Customer or a user before or after the date of the Customer’s or the user’s use of the Goods.
Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (“CCA”) or the Fair Trading Acts (“FTAs”) in each of the States and Territories of Australia (including any substitute to the CCA or FTAs or re-enactment thereof), except to the extent permitted by the CCA or FTAs where applicable.
Except as expressly set out in these Terms or in the CCA or FTAs, the Supplier makes no warranties or other representations under these Terms including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of the Australian Consumer Law as contained in Schedule 2 of the CCA.
Subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
The Customer failing to maintain properly or store any Goods;
The Customer using the Goods for any purpose other than that which they were designed;
The Customer continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
The Customer failing to follow any instructions or guidelines provided by the Supplier; and
Fair wear and tear, any accident or act of God.
The Supplier will only accept a return if required by and on the conditions imposed by law.
The Customer indemnifies the Supplier and holds the Supplier harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Supplier from and against all actions, proceedings, claims or demands made against the Supplier arising in either case as a result of:
The Customer’s failure to comply with any laws, rules, standards or regulations applicable in relation to the Goods or the use of the Goods;
Any use of the Goods contrary to any instructions or warning given by the Supplier;
Any other negligence or any breach of duty by the Customer;
Any compliance or adherence by the Supplier with any instructions by the Customer in relation to the Goods or their manner of preparation; or
Any failures resulting from the incorporation of, or failure of, non-Supplier manufactured or supplied parts in the Goods.
Except where the Customer is the author of any intellectual property in the Goods, the specification and design of the Goods (being all the intellectual property in the Goods, including but not limited to copyright, design right and other intellectual property) remains the property of the Supplier. Any of the Supplier’s intellectual property rights in the Goods shall only be used by the Customer with the Supplier’s consent and at the Supplier’s discretion.
The Customer warrants that all designs or instructions given to the Supplier will not cause the Supplier to infringe any intellectual property rights of any other party and the Customer agrees to indemnify the Supplier against any action taken by any other party against the Supplier in respect of any such infringement.
The Customer will be in default if the Customer does not pay the Supplier when any amount is due for payment or fails to comply with any other obligations under the Agreement. If the Customer is in default and does not remedy the default within seven (7) days of written notice of the default by the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any of its other accrued or contingent rights:
Charge the Customer interest on any sum due at the prevailing Reverse Bank of Australia overnight cash rate plus 5% per annum for the period from the due date until the date of payment in full;
Charge the Customer for, and the Customer must indemnify the Supplier 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 Customer; and
by written notice to the Customer, terminate any uncompleted contract with the Customer.
Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Customer order which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
The Customer fails to comply with a default notice under this clause;
The Customer, in the Supplier’s opinion, will be unable to meet its payments as they fall due;
The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an agreement with creditors, or makes an assignment for the benefit of its creditors;
Where the Customer is a corporation and 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 a view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer; and
Where the Customer 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.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200)) may be levied for administration fees which sum shall become immediately due and payable by the Customer.
If the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Supplier.
The Supplier may amend these Terms from time to time with or without notice to the Customer.
The Supplier may suspend or discontinue the supply of Goods and/or Services to the Customer without being obliged to give any reason. The Supplier shall not be liable for any loss or damage whatsoever arising from any suspension or discontinuation of supply or cancellation of contract.
The Supplier may terminate the Agreement for any reason or for no reason by notice to the Customer. On termination, the Supplier shall be entitled to take possession of any Goods for which it has not received payment in full and for this purpose the Customer irrevocably appoints the Supplier its attorney and authorises the Supplier or its agents to enter on any land or premises owned by or under control of the Customer and recover the Goods and will pay for and indemnifies the Supplier against any claims, losses, damages, costs and expenses arising out of the repossession of the Goods.
The Supplier will not be in breach or otherwise be liable for any delay in performance or the non-performance of its obligations to the extent that the delay or non-performance is due to any force majeure of which the Supplier has notified the Customer. The time for performance of that obligation by the Supplier will be extended to take into account the force majeure.
If any of these Terms is or becomes for any reason wholly or partly invalid that term shall, to the extent of the invalidity, be severed without prejudice to the continuing force and validity of the remaining conditions.
These Terms are to be governed and construed by the laws of the State of Victoria and the parties irrevocably submit to the jurisdiction of the courts of that State.
These Terms supersede and exclude all prior or other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods and/or Services or any part of the Goods and/or Services, including, but without limiting the generality of the foregoing, those relating to the performance of the Goods or any part of the Goods or the results that ought to be expected from using the Goods. The Customer acknowledges that no warranty, condition, description or representation in relation to the Goods is given by the Supplier, expressly or impliedly.
The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Supplier’s rights.
Any notice required under these Terms must be in writing and may be given to the other party by being:
Posted to the other party’s address as notified by the other party to the sender, in which it shall be deemed to have been received on the second business day after posting;
Faxed to the other party’s facsimile number as notified by the other party to the sender, in which case it shall be treated as received on the day of sending; or
Sent by email to the other party’s email address as notified by the other party to the sender, in which it shall be treated as received on that day.
In these Terms:
“Agreement” means the agreement between the Supplier and the Customer described in clause 1 and is deemed to include these Terms, any quotation and/or order form, any customer details form and the terms of any Credit Application and/or guarantee relating to the Customer;
“Credit Application” means an application made by the Customer to the Supplier for the provision of credit and shall be made in whatever form or manner the Suppler may require from time to time;
“Customer” means the person, entity or business entering expressly or in any other way (including in accordance with clause 8) into the Agreement with the Supplier and, in the case of a company, shall include its permitted successors, assigns and agents, and in the case of an individual shall include that individual’s administrators and executors;
“Goods” means any goods that the Supplier supplies to the Customer at any time (as specified in a purchase order, if any) under the terms of the Agreement between the Customer and the Supplier and as described on invoices, quotations, work authorisations and any other forms provided by the Supplier to the Customer as well as each or any replacement, altered or substitute part and all appliances, parts, components, instruments, appurtenances, accessories and other equipment which may from time to time be incorporated or installed in or attached to the Goods and, except where the context otherwise requires, includes any part of such Goods, but does not include intellectual property or Services;
“GST” means any tax including any additional tax imposed on the supply of or payment for Goods, Equipment or Services which is imposed or assessed under the GST law, which is excluded from the Price. “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and all other related and ancillary legislation;
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;
“PPSR” means the Personal Property Securities Register established under the PPSA;
“Price” means the amount payable by the Customer as agreed with the Supplier for the Goods and/or Services excluded of any other sum payable by the Customer;
“Price List” means the price list (if any) published by the Supplier from time to time; and
“Services” means Services (if any) supplied by the Supplier to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods).
In these Terms, any reference to a statutory provision shall include that provision as from time to time modified or re-enacted.