TERMS AND CONDITIONS TO APPLY TO ALL SALES
KODE AUSTRALIA PTY LTD ACN 601 634 459 (“Supplier”) and the Customer (being the Applicant named in any application for credit accompanying these Terms & Conditions or otherwise a purchaser of goods and services from the Supplier) (“Customer”) agree that these Terms and Conditions (“Terms & Conditions”) shall apply to the supply of all Goods sold and Services provided by the Supplier to the Customer despite any prior agreements, prior offers, dealings or trade usage, or any terms communicated by the Customer to the Supplier.
(a) In these Terms & Conditions:
“Account” means each account of the Customer with the Supplier for moneys owing in relation to the supply of Goods and/or Services;
“Applicant” means the applicant for an account named in any accompanying application for credit;
“Customer’s Land” means all of the Customer’s right, title and interest in land (held now or in the future, wherever located) whether owned by the Customer legally and/or beneficially or as trustee of any Trust;
“Delivery Date” means, in relation to any Goods or Services, the date agreed between the Supplier and the Customer by which the Goods are to be delivered and/or the Services are to be provided.
“Goods” means all goods supplied or to be supplied by the Supplier to the Customer including goods whether or not manufactured by the Supplier and whether or not manufactured or modified at the Customer’s request;
“Services” means any services supplied or to be supplied by the Supplier to the Customer;
“Moneys” means all moneys now or in the future actually or contingently owing by the Customer to the Supplier on any Account and includes any part of those moneys and includes all interest accruals and costs, expenses, and disbursements;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
(b) If the Customer is comprised of more than one person then “Customer” means those persons collectively and each of them individually and the obligations and liabilities on the part of the Customer in these Terms & Conditions binds all of them jointly and each of them severally.
(c) A reference to the singular includes the plural and vice versa.
(d) A reference to one gender denotes the relevant gender.
(e) A person denotes an individual or corporation or other legal entity as applicable.
If the Supplier has provided any quotation specifically for Goods and Services (“Quotation“):
- these Terms & Conditions shall apply to the Quotation;
- the price in the Quotation shall be the Supplier’s current price as at the date of the Quotation and the price actually payable for the Goods and Services shall be the Supplier’s current price as at the date of the Customer’s acceptance of the Quotation;
- the Quotation will detail any charges for delivery of the Goods and Services;
- subject to clause 2 (b), the Quotation shall remain valid for acceptance by the Customer for thirty (30) days after the date of the Quotation; and
- if a deposit for Goods and Services is required details will appear in the Quotation.
(a) Once accepted by the Customer, a Quotation becomes an order for Goods and Services (“Order”) under these Terms & Conditions.
(b) If the Customer has made an Order for Goods and Services without there being a Quotation provided by the Supplier:
(i) the Order is subject to acceptance in writing by the Supplier; and
(ii) the price actually payable for the Goods and Services is the Supplier’s current price as at the date of the Supplier’s acceptance of the Order.
(d) Orders made through an agent, reseller or other sales partner will be subject to the further terms specified as pertaining to orders made via such service by the service provider.
(e) Where there is any inconsistency between the terms of any website or other service and these Terms & Conditions, these Terms & Conditions prevail except as otherwise stated in writing by the Supplier.
VARIATION OR CANCELLATION
After the Customer’s acceptance of a Quotation or the Supplier’s acceptance of an Order:
- no change in the specification of Goods and Services shall bind the Supplier, unless the Supplier expressly agrees to the change in writing, which agreement may be the subject of a variation in the terms of supply including the price of the Goods and Services;
- cancellations are at the Supplier’s discretion;
- the Supplier may specify the terms upon which it will accept cancellations or returns in any returns policy or other order policy made available by the Supplier; and
- unless otherwise specified in such returns or cancellation policy, if the Customer cancels an Order, the Customer will reimburse the Supplier for any loss, damage or expenses incurred by the Supplier in relation to the supply or proposed supply of the Goods and Services.
CHARGES AND TAXES
- Unless otherwise expressly stated, the price of Goods and Services excludes all freight, transportation, shipping, insurance, packing, crating or casing, storage, handling, demurrage, delivery, export and similar charges, and all sales, GST, excise or other taxes, and the Customer shall pay and indemnify the Supplier for those charges or taxes. If the Supplier expressly agrees in writing that the price includes any of such charges or taxes, the price is subject to adjustment for increases in any of those charges or taxes after the date of the Quotation or acceptance of the Order.
- The Customer shall pay all taxes, levies, duties and assessments of every nature due in connection with the Goods and Services supplied and hereby indemnifies and holds harmless the Supplier from any liability on account of any and all such taxes, levies, duties, assessments and deductions.
- The price for Goods and Services includes import duty. However, the Supplier reserves the right to charge the Customer if the amount of import duty increases.
- For the avoidance of doubt the price for Goods does not include the cost of any installation, commissioning or training requested by the Customer. Such Services may be from time to time available for purchase separately in connection with the purchase of any Goods.
(a) The Customer must make payment of the Goods and Services in accordance with the payment terms set out in the Order or Quotation.
- Except as otherwise specified in the Order or Quotation or for Goods or Services purchased under a credit account with the Supplier, final payment for Goods and Services is required by the later of: (1) completion of delivery of the Goods and/or Services; or (2) within 7 days of invoicing by the Supplier.
- For Goods and Services purchased under a credit account with the Supplier, the Customer shall pay for Goods and Services within 30 days from the end of the calendar month in which the Goods and/or Services are invoiced by the Supplier.
- Time shall be of the essence in respect of payment for the Goods and Services.
- Interest shall accrue on all outstanding payments at the rate of 2% per month until payment in cleared funds is received by the Supplier in full. This is in addition to any other rights of the Supplier.
- All payments by the Customer must be made without any deduction, set–off or counterclaim, except as otherwise agreed in writing by the Supplier.
- For the avoidance of doubt, any credit limit is solely for the benefit of Supplier and the obligations of the Customer under these Terms & Conditions remain unchanged if the credit limit is exceeded or not specified at any time.
- The Customer must pay, in addition to the price, any GST on the supply of the Goods and Services except to the extent that the prices expressly include GST and subject always to the Supplier having provided the Customer with a tax invoice.
- The Supplier is further entitled to recover from the Customer, all losses, expenses, disbursements and costs (including legal fees) on a full indemnity basis, consequent upon the Supplier seeking to execute or enforce a right under these Terms & Conditions and/or any guarantees related to the Customer’s account, and all such amounts are recoverable from the Customer by the Supplier as a liquidated debt.
The Supplier will deliver the Goods and Services to the Customer:
(i) if a Delivery Date is specified in the Order, by the Delivery Date; or
(ii) if a Delivery Date is not specified in the Order, as soon as possible having regard to the Supplier’s ordinary dispatch procedures and time frames;
provided that any Delivery Date is an estimate only and delivery by any specified date is subject to extension for any delay caused by strikes, lockouts, war, breakdowns, accidents, delays in transport, fire or any other cause beyond the reasonable control of the Supplier.
- Without limiting the foregoing provisions and to the extent permissible at law, the Supplier will not be liable for any loss, damage or other liability whether in contract, tort, negligence or otherwise and whether directly or indirectly arising from the Goods and Services not being delivered by any specified date.
- The Customer will be charged for all costs related to delivery, which except as otherwise stated in the Order, are not included in the price of the Goods. Except as otherwise stated in the Order, any delivery fees and charges listed in an Order or Quotation are an estimate only and the Supplier is entitled to recover the total cost incurred to effect delivery.
- The Supplier may, where it is convenient for the Supplier to do so, deliver Goods and Services to the Customer in instalments and in respect of which the Supplier may separately invoice the Customer for payment for each delivery instalment (each of which shall be taken to be the subject of a separate and distinct contract between the parties).
- Except as otherwise stated in any official returns policy issued by the Supplier:
(i) any Goods and Services sought to be returned will only be accepted with the prior written approval of the Supplier and may be subject to a 10% handling/restocking fee; and
(ii) change of mind returns (if accepted) do not apply to Goods which have been specifically manufactured by the Supplier for the Customer or altered by the Customer.
RISK AND TITLE IN GOODS
- The Goods shall be entirely at the risk (including loss, damage or deterioration) of the Customer from the time of delivery of the Goods (the carrier of the Goods shall be taken to be the agent of the Customer even if engaged or paid by the Supplier).
- The Supplier retains full title to the Goods until the Supplier receives payment in full for the Goods and all other amounts owed by the Customer to the Supplier.
- Until all Monies have been paid:
- the Supplier has the right to call for or recover possession of the Goods (for which purpose the Supplier’s employees or agents may enter onto the Customer’s premises) and the Customer must deliver up the Goods if so directed by the Supplier;
- the Customer:
(A) agrees that the relationship between the Customer and the Supplier shall be fiduciary and the Customer shall keep the Goods safely, securely and separately stored and marked in a manner which clearly indicates that they belong to the Supplier;
(B) has the right to resell the Goods in the ordinary course of the Customer’s business as the Supplier’s fiduciary agent but must not otherwise dispose of or encumber the Goods;
(C) shall not mix the Goods with or attach them to other materials or otherwise make them unable to be returned to the Supplier in their original state;
(D) agrees that if the Goods are incorporated with goods of the Customer, the resultant product shall become and be deemed to be the sole property of the Supplier. If the Goods are incorporated in any way with the property of a party other than the Customer, the resultant product shall become and be deemed to be owned in common by the Supplier with that other party (or parties) on a pro-rata basis to be calculated by reference to the cost to the Customer of the incorporated materials; and
(E) will hold any proceeds (as that term is defined in the PPSA) of any resale, disposal or other dealing with the Goods or any product incorporating the Goods (including sale or supply to a party other than the Customer) in trust for the Supplier and shall pay the proceeds into a separate fiduciary account to be held in trust for the Supplier until accounted for to the Supplier at the demand of the Supplier.
DEFECTIVE GOODS & SERVICES
- Within 7 days after the delivery of the Goods and Services and the provision of the Services the Customer must complete an inspection or test to confirm the Goods and Services comply with these Terms & Conditions or any Order or specifications and notify the Supplier in writing of the extent to which the Goods and/or Services do not comply with the Terms & Conditions or any Order or specifications.
- The Customer shall not use the Goods and Services (other than to the extent reasonably necessary for inspection and testing) before the Customer completes inspection and testing and satisfies itself that Goods and Services comply with the Terms & Conditions or any Order or specifications, and, if the Customer notifies the Supplier in writing that the Goods and Services do not comply with the Terms & Conditions or any Order or specifications, until the Supplier has had a reasonable opportunity to inspect and test the Goods and Services after the Supplier receives that notice.
- If the Customer does not comply with clause 10(a) or 10(b), the Customer shall be taken to have unconditionally accepted the Goods and Services.
- The Supplier may from time to time issue a specific warranty in respect of Goods or Services and make the warranty terms available on its website.
- To the extent that Goods or Services are not the subject of a specific warranty found on the Supplier’s website the Supplier provides the general warranty in sub-clause (c) of this clause in respect of any Goods manufactured by the Supplier.
- In addition to other rights and remedies under Australian Consumer Law, the Supplier warrants that Goods manufactured by the Supplier and Services delivered by the Supplier will be free of defects for a period of 12 months from the date or their delivery, and if a defect is brought to the attention of the Supplier during this time the Supplier will replace or repair (at the Supplier’s discretion) any defective Goods and Services.
- Any warranty given by the Supplier, whether by warranty statement available on its website or under sub-clause (c) of this clause does not apply to damage or defects arising from:
- improper adjustment, operation or use of the Goods and Services by any party other than the Supplier;
- any modification or adaptation of, or addition to, the Goods and Services by any party other than the Supplier;
- misuse of the Goods and Services or operation contrary to specifications by any party other than the Supplier;
- inadequate or improper maintenance or storage of the Goods and Services; or
- general wear and tear including normal or scheduled maintenance.
- If the Customer is a Consumer, as defined in the Competition and Consumer Act 2010 (Cth), the Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods and Services repaired or replaced if the Goods and Services fail to be of acceptable quality and the failure does not amount to a major failure.
LIMITATION OF LIABILITY
The Customer agrees as follows:
- By acquiring Goods or Services the Customer warrants that it has checked the specifications of the Goods and Services and is satisfied that the Goods and Services meet all of the Customer’s requirements.
- The Customer must satisfy itself of the accuracy of any associated advices, recommendations, projections, estimates and assessments by the Supplier, as well as any services not included in the Services purchased by the Supplier, all of which are given in good faith but without warranty.
- Where Services are performed on the basis of information and instructions provided by the Customer or its contractors, the Customer is responsible for the truthfulness and accuracy of such information which the Customer acknowledges the Supplier is not obliged to verify.
- Except to the extent prohibited by law, the only remedy of the Customer against the Supplier for any loss, damage or liability whether in contract, tort, negligence or otherwise in connection with the Supplier’s supply or failure to supply of the Goods and Services, shall be limited to the Supplier, at its option, replacing or repairing any Goods supplied and/or re-performing the Services or paying for the Goods or Services to be re-supplied.
- Without limiting the foregoing and to the extent permitted by law, the Supplier shall not be liable to the Customer in any circumstances for any indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, lost opportunity, loss of data or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
(a) The Customer acknowledges and agrees that, as between the Customer and the Supplier, the Supplier owns all intellectual property rights of any kind (whether or not registered or capable of registration) in the Goods and Services, and the sale of the Goods and Services to the Customer does not include the transfer of any intellectual property rights to the Customer.
(b) The Customer must not deal in the intellectual property rights of the Supplier, including but not limited to reverse engineer the Goods and Services and or use the intellectual property rights of the Supplier for the purpose of recreating the Goods and Services (with or without alteration) or for any other purpose except the operation of the Goods and Services in their ordinary course.
(c) The Customer furthermore agrees to keep confidential any information regarding the Goods and Services advised by the Supplier from time to time which is not already available in the public domain, the onus of proof of which rests with the Customer. This includes manuals, charts, assessments, reports and other documentation produced for the Customer’s use in connection with the Goods and Services.
DEFAULT, INSOLVENCY AND TERMINATION
If the Customer:
- commits a substantial breach of the Terms & Conditions including unreasonably refusing to accept any Goods and Services or failing to pay for any Goods and Services, in accordance with the Terms & Conditions; or
- informs any person it is insolvent, commits an act of bankruptcy, has a bankruptcy petition presented against it, becomes bankrupt, becomes subject to or bound by any arrangement, assignment, composition or moratorium of debts with its creditors, official management, receivership, liquidation, voluntary administration, winding up or other external administration;
all monies owing by the Customer to the Supplier become immediately due and payable and the Supplier may, without affecting the Supplier other rights:
- immediately terminate supply of Goods and Services;
- refuse, suspend or withhold supply of any further Goods and Services;
- enter upon (personally or by its employees or agents) any premises in the possession or control of the Customer and use reasonable force for the purposes of retaking possession of any Goods (title to which has not passed to the Customer), in which case the sale of those Goods by the Supplier to the Customer shall be taken to be terminated and the Supplier shall have no liability to the Customer whether for trespass, negligence, payment of damages or compensation or otherwise;
- terminate any credit arrangement with the Customer;
- sue the Customer for payment of all monies owing to the Supplier by the Customer including damages on account of the Customer’s breach and pursuant to any indemnity given by the Customer;
- exercise any rights under any security interest or other security held by the Supplier; and
- exercise any other right or power under these Terms & Conditions or at law.
TRUST AND TRUSTEES
Where the Customer is a trustee of any trust:-
- the Customer warrants that it is the trustee of the trust and has the authority to enter into these Terms & Conditions on behalf of the trust;
- the Customer agrees to produce immediately to the Supplier a stamped copy of the trust deed (including all amendments) upon written notice from the Supplier demanding a copy of that trust deed;
- the Customer warrants that it shall be bound by these Terms & Conditions both personally and as trustee and clause 14 extends to any land held by the Customer as trustee; and
- the foregoing warranties and agreements shall be deemed repeated on each occasion that the Customer makes and Order or accepts a Quotation from the Supplier.
CUSTOMER ACCOUNT AND CHANGE OF CONTROL
- Where the Customer holds an account with the Supplier, the Customer is responsible for the safe keeping of all user names, passwords and other account information provided by the Supplier and must ensure no unauthorised persons use the Customer’s account with the Supplier. The Supplier reserves the right to accept Orders from any person who provides the credentials of the Customer and the Customer acknowledges that payment for such Orders shall be required whether or not such Orders were made in compliance with any internal procedures of the Customer.
- If the Customer’s business is sold the Customer will immediately notify the Supplier and close the account to prevent misuse and will remain liable for the account until written notification of change of ownership of the business has been received by the Supplier.
- The Customer must provide notice in writing to the Supplier of any change in the person with effective control over the Customer when compared to immediately before the initial acceptance of these Terms (ignoring any amendments or updates), as a result of changes to the membership or beneficial ownership (whether over the shares, business or assets) of the Customer (“Change of Control“).
- If, without the prior written consent of the Supplier, the Customer undergoes a Change of Control, the Supplier may, in its absolute discretion:
(i) withdraw or vary credit facilities offered to the Customer; or
(ii) terminate any agreement with the Customer.
- To secure payment of all moneys which are or may become payable by the Customer to the Supplier under this Agreement the Customer (or where the Customer is comprised of two or more persons then each person jointly and severally) hereby charges with the due payment of all of those moneys all of the Customer’s interest in all property owned by the Customer including real property and personal property wherever located both present and future, and the Customer consents to the Supplier lodging a security including a financing statement under the PPSA or a caveat or caveats over real property under this charge.
- Upon demand by the Supplier in the event of default by the Customer on these Terms & Conditions, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Supplier to further secure the Customer’s indebtedness to the Supplier.
- Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocably the credit manager or a duly authorised officer of the Supplier to be the Customer’s lawful attorney to execute any such mortgage or other instrument.
- Any term in this clause 18 which is defined in the PPSA has the same meaning as defined in the PPSA.
- It is the intention of the parties by clause 9(b) that there is created for the benefit of the Supplier a Purchase Money Security Interest in the Goods as defined in the PPSA and such security interest extends to all proceeds of any dealing in the Goods.
- It is the intention of the parties by this clause 17 that there is created for the benefit of the Supplier, from the date demand is made by the Supplier under clause 17(b), a general security interest in all present and after acquired property of the Customer and such interest extends to all proceeds of any dealing in the Customer’s property.
- The Customer agrees that the Supplier may register any personal property security interest created by these Terms & Conditions on the Personal Property Securities Register.
- The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by the Supplier in respect of any personal property of the Customer.
- The parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on the Supplier, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that the Supplier otherwise agrees in writing.
- The Customer confirms that any personal information provided by the Customer will be accurate and complete. Furthermore, the Customer agrees to provide updated information, as and when further information is requested by the Supplier for the purpose of reviewing the credit history of the account, updating the Supplier’s credit file on the Customer (if any) and/or attending to any other assessment or matter in connection with Orders.
The laws of the State of Queensland shall apply to the Terms & Conditions and the Customer submits to the exclusive jurisdiction of the Courts of the Central Business District in Brisbane.
The Supplier’s failure to exercise any right under the Terms & Conditions or to insist on strict performance of any part of the Terms & Conditions does not operate as a waiver and a partial exercise of a right does not preclude any further or fuller exercise of that right.
If any part of these Terms & Conditions or any related document is or becomes void or unenforceable that part is severed so that all parts which are not void or unenforceable remain in full force and effect and are unaffected by the severance.
- Notices required to be given by the Customer to the Supplier pursuant to these Terms & Conditions may be delivered to the Supplier:
- personally to the Supplier at 1/78 Kurzok Place, Richlands QLD 4077; or
- sent by post to the Supplier’s postal address at PO Box 3232 Mount Ommaney QLD 4074; or
- sent by email to the Supplier at email@example.com.
- Notices will be taken as delivered when received by the Supplier.
- Notices required to be given by the Supplier to the Customer pursuant to these Terms & Conditions may be delivered:
- by post to the Customer’s last known address (and shall be taken as delivered on the second business day following posting); or
- by facsimile to the Customer’s last known facsimile number (and will be taken to be received when a successful facsimile transmission is notified the Supplier’s fax machine); or
- by email to the last notified email address of the Customer (which will be taken to be received within 24 hours of the Supplier sending the email to the correct email address).
- Notices required to be given by the Customer to the Supplier pursuant to these Terms & Conditions may be delivered to the Supplier: