Wow Factor Innovations Pty Ltd - Agreement and Standard Terms and Conditions of Trade

1.  Definitions

1.1  “Seller” shall mean Wow Factor Innovations Pty Ltd (ABN 15 161 387 926), its successors and assigns or any person acting on behalf of and with the authority of Wow Factor Innovations Pty Ltd.

1.2  “Buyer” shall mean the buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any invoice, quotation, work authorisation or other form as provided by the Seller to the Buyer.

1.3  “Goods” shall mean goods supplied by the Seller to the Buyer (and where context so permits shall include any supply of Services as hereinafter defined) that are described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.

1.4  “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.5  “Price” shall mean the price payable for the Goods as agreed between the Seller and Buyer in accordance with clause 4 of this Agreement.

2.  Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)

2.1  Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each State and Territories of Australia (or its equivalent), except to the extent permitted by those Acts where applicable.

3.  Acceptance

3.1  Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

3.2  Where more than one Buyer has entered into this Agreement, the Buyers shall be jointly and severally liable for all payments of the Price.

3.3  Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are binding and can only be amended with the written consent of the Seller.

3.4 The Buyer shall give the Seller not less than seven (7) days prior written notice of any proposed change of ownership of the Buyer or any change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, facsimile number or banking details). The Buyer shall be liable for and indemnify the Seller for any direct, special, indirect or consequential loss howsoever caused (including by the negligence of the Seller) incurred by the Seller as a result of the Buyer’s failure to comply with this clause.

3.5  Goods are supplied by the Seller only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3.6 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manufacturer of the Goods in writing nor is the Seller bound by any such unauthorised statements.

4.  Price and Payment

4.1  At the Seller’s sole discretion the Price is as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied.

4.2  The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation, including but not limited to any variation to the Price as a result of an increase in the manufacturer prices, a fluctuation in exchange rates or duties, rising freight costs or delivery costs.

4.3 At the Seller’s sole discretion a deposit may be required.

4.4 At the Seller’s sole discretion payment shall be due before delivery of the Goods or for approved Buyers shall be made by instalments in accordance with the Seller’s payment schedule. Time for payment for the Goods shall be of the essence.

4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge as determined by the Seller), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.

4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.7  All quoted Prices include standard packaging. Any special packaging shall be treated as a variation to the Price.

5.  Deliver of Goods

5.1  At the Seller’s sole discretion delivery of Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s nominated address.

5.2  At the Seller’s sole discretion the costs of delivery are in addition to the Price.

5.3  The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.

5.4  The failure of the Seller to deliver shall not entitle either party to treat this Agreement as repudiated.

5.5  The Seller shall not be liable for any direct, special, indirect or consequential loss or damage, howsoever caused (including by the negligence of the Seller) sustained by the Buyer due to failure by the Seller to deliver Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller or due to the Seller’s negligence.

6.  Availability

6.1  The Buyer acknowledges that any delivery date, either stated or implied, is an estimate only, subject to availability of the Goods, and the Seller shall not be liable for any direct, special, indirect or consequential loss, damage or delay howsoever caused (including by the negligence of the Seller) occasioned by the Buyer arising from the non-availability or delayed-availability of the Goods from the manufacturer.

7.  Buyer’s Disclaimer

7.1  The Buyer hereby disclaims any right to rescind or cancel the Agreement or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are purchased relying solely upon the Buyer’s skill and judgement.

8.  Risk

8.1  If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer upon departure of the Goods from the Sellers premises. The Seller shall not be liable for any direct, special, indirect or consequential loss or damage howsoever caused (including by the negligence of the Seller) incurred by the Buyer in connection with the Goods whilst in transit, caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to such loss or damage).

8.2  If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s right to receive the insurance proceedings without the need for any person dealing with the Seller to make further enquiries.

9.  Title

9.1  The Seller and the Buyer agree that the ownership of the Goods shall not pass until:

(a)     the Buyer has paid the Seller all amounts owing for the particular Goods; and

(b)     the Buyer has met all other obligations due by the Buyer to the Seller in respect of all Agreements between the Seller and the Buyer.

9.2  Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised and until then the Seller’s ownership to rights in respect of the Goods shall continue.

9.3  It is further agreed that:

(a)     if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and

(b)     the Buyer is only a bailee of the Goods until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of Goods, up to and including the amount the Buyer owes to the Seller for the Goods, on trust for the Seller; and

(c)     the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d)     the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and

(e)     the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and

(f)      until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.

10.  Personal Property Securities Laws

10.1  The Seller and the Buyer agree that the terms and conditions of this agreement create a purchase money security interest in the Goods and the Buyer must do all things reasonably required by the Seller to register and perfect that interest under the terms of the Personal Property Securities Act 2009 (Cth) or otherwise.

10.2  If the Seller repossesses the Goods the Seller does not need to provide the Buyer with any notices under sections 130 or 135 of the Property Securities Act 2009 (Cth).

10.3  The Buyer will, at the Seller’s request, pay any or all of the Seller’s costs and expenses, on an indemnity basis related to registration and enforcement of any security interest related to the Goods under this agreement (including in relation to any security interest granted by a person guaranteeing the Buyer’s performance of these terms) or related to ensuring the payment of the Seller’s overdue debt, commission and fees payable to a collection agency, solicitor or the like.

11.  Specifications

11.1  All specifications, drawings and images, particulars of weight and dimensions and other information submitted to the Buyer are as supplied by the manufacturer and the Seller shall not be liable for any direct special, indirect or consequential loss or damage howsoever caused (including by the negligence of the Seller) incurred by the Buyer resulting from the discrepancies between this information and the Goods.

11.2  The Buyer acknowledges that neither the Seller nor any person acting on the Seller’s behalf has made any representation or given any promise or undertaking not expressly set out in this Agreement whether as to the fitness of the Goods for any particular purpose or any other application or matter.

12.  Defects

12.1  The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defects in writing, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within fourteen (14) days following delivery if the Buyer believes the Goods are defective in any way. If the Buyer fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods except where the Buyer has acquired Goods as a consumer within the meaning of the CCA or FTA (or its equivalent) of the relevant state or territories of Australia, and is therefore also entitled to, at the Buyer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

12.2  Goods will not be accepted for return other than in accordance with 12.1 above.

13.  Warranty

13.1  For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

13.2  To the full extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty is expressly excluded. The Seller shall not be responsible in any way for any direct, special, indirect or consequential loss or damage (howsoever caused) incurred by the Buyer for the Goods, or caused by the Goods, or any part thereof however arising, including loss or damage arising from the Seller’s negligence.

14.  Limitation of Liability

14.1  To the extent permitted by the CCA and relevant state legislation, the sole obligation of the Seller under this Agreement is to use its reasonable efforts to provide the products or to repair the products or repair or replace (at the Seller’s sole discretion) any part of a product which is found to be defective during the warranty period and in no event shall the Seller be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the products, and any indirect, special or consequential damages or injury to any person (including personal injury), corporation or other entity.

14.2  If any products supplied pursuant to this Agreement are supplied to the Buyer as a ‘consumer’ of goods or services within the meaning of that term in the CCA as amended or similar state legislation the Buyer will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the CCA or similar legislation is so conferred. However, if the product is a product not ordinarily acquired for personal, domestic or household use or consumption pursuant to the CCA and similar provisions of relevant state legislation, the Seller limits its liability to the replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the costs of replacing the goods or of acquiring equivalent goods and payment of the costs of having the goods repaired, or the re-supply of the services and payment of the cost of re-supply of the services.

14.3  Subject to clause 14.2 above, the Seller is not liable for default or failure in performance of its obligations pursuant to this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of the Seller.

14.4  Subject to clause 14.2 above, the Seller is not responsible for any loss caused by an error or defect in the products or errors or faults caused by the product supplied by any person.

15.  Default and Consequences of Default

15.1  Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment at a rate of ten percent (10%) per annum (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2  In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Seller.

15.3  If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

15.4  Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those related to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any direct, special, indirect or consequential loss or damage howsoever caused (including by the negligence of the Seller) incurred by the Buyer because the Seller has exercised its rights under this clause.

15.5  At the Seller’s sole discretion and unless otherwise agreed between the parties, if any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable.

16.  Security and Charge

16.1  Despite anything to the contrary contained herein or any other rights which the Seller may have however, where the Buyer is the owner of land, realty or any other asset capable of being charged, the Buyer agrees to mortgage and/or charge all of its joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer acknowledges and agrees that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

16.2  Should the Seller elect to proceed in any manner in accordance with this cause and/or its sub-clauses, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

16.3  The Buyer agrees to irrevocably nominate, constitute and appoint the Seller or the Seller’s nominee as the Buyer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.

17.  Cancellation

17.1  The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving notice to the Buyer. On giving such notice, the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any direct, special, indirect or consequential loss or damage howsoever caused (including by the negligence of the Seller) incurred by the Buyer in connection with and or arising from such cancellation.

17.2  In the event that the Buyer cancels delivery of Goods, the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.

18.  Privacy Act 1988 (Cth)

18.1  The Buyer agrees that personal credit information provided to the Seller may be used and retained by the Seller for the purpose of marketing the Goods, daily operation of the Buyer’s account, collecting amounts outstanding or obtaining a consumer credit report about the Buyer.

19.  General

19.1  If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19.2  There terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.

19.3  In the event of any breach of this contract by the Seller, the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

19.4  The Seller may license, assign or sub-contract all or any part of its rights and obligations without the Buyer’s consent.