We, Us, Our and similar expressions, refer to Dannys HQ Pty Ltd (ACN 159 698 745), and where applicable its Related Bodies Corporate. You and similar expressions, refer to the person, corporation, trust or partnership purchasing equipment from Us and whose name appears in the Delivery Documents.
Any quotation, credit application or delivery docket form part of these terms, whether signed by you or not (together with the terms, the Agreement). You should read and consider carefully these terms and conditions before taking delivery. For the purposes of this Agreement, ‘Goods’ shall mean any and all items of equipment described in the quotation or provided to you whatsoever pursuant to this Agreement.
1. General terms
1.1. In return for us agreeing to consider your order you agree that these conditions apply if we do accept your order (whether for cash, or on credit).
1.2. We are not obliged to accept any orders from you, but if you do place an order with us then it becomes binding from the moment that we accept it even if we do not tell you that it has been accepted. Any quotation is merely an invitation to you to place an order with us. If you offer to purchase goods based on a quotation from us, then your offer is subject to these conditions. Quotes are valid for 30 days and do not unless specified otherwise include freight.
1.3. These conditions prevail even if they are inconsistent with anything in any earlier or later order form or similar document.
2. Payments and Credits
2.1. Unless we agree in writing to give you credit, you must pay 40% on order and the balance prior to delivery.
2.2. At our discretion, we may decline to give you further credit at any time. If we do decline to give you further credit then that decision does not affect the credit terms which apply to any amounts you then owe to us.
2.3. If any amount you owe to us is not paid within 7 days of the due date then all of the monies that you owe us on any account become immediately due and payable; and without limiting our other rights we may suspend the supply of service and defer or cancel any outstanding orders.If you do not pay an invoice by the due date, a late payment fee of 2% above the prime overdraft rate charged from time to time by our bankers calculated and payable daily may be imposed. In addition, without limiting any right contained below, you will be liable to indemnify us for all expenses incurred by us in recovering any amounts which you fail to pay by the due date (including any commission payable to any commercial or mercantile agents and legal costs).
2.4. In the event that we deliver on credit, you acknowledge that we have a security interest in the Goods for the purposes of the Personal Property Securities Act (Cth) (PPS Act) and to the extent applicable the PPS Act applies. To give effect to the above, you consent to us effecting a registration on the Personal Properties Securities Register (PPSR) (in any manner we consider appropriate) in relation to any security interest arising under or in connection with this Agreement or any hire agreement and you agree to provide all assistance reasonably required to facilitate this. You also undertakes to do all such things, including executing any new document or providing any information that is required by us so that we acquire and maintain a perfected security interest under the PPSA in respect of the Goods and its proceeds, so that we may register a financing statement or financing change statement and to ensure that our security position, and rights and obligations, are not adversely affected by the PPS Act.
2.5. We may increase any agreed sale price after we accept an order, to cover the full amount of any increases in indirect taxes and duties such as sales taxes, GST, consumption taxes and stamp duty which we incur in connection with a transaction after the date of your order. We may also impose a charge for accepting payments by credit card. We may set off against any credit owed to you any amount owing by you to us.
3. Guarantees Warranties and Limitations
3.1. We guarantee that goods are of acceptable quality when sold. In the event that a good is not of acceptable quality when sold you should immediately contact us by the methods described below. For all household goods (as defined by the ACL) if there is a major failure of one of our guarantees, you are entitled to a refund or to reject the item and to get an identical replacement or one of similar value if reasonably available or to keep the goods and get compensation for the drop in value caused by the problem. If there is a minor failure we can chose to repair or replace any item sold by us or to offer you a refund. For non-household goods we can chose in our absolute discretion to repair, refund or replace any item sold by us. This warranty sits alongside to and is in addition to the consumer guarantees which cannot be excluded. Important Exclusions: Our warranty does not cover: in transit damage; failure to comply with the original supplier or manufacturer warranty; willful abuse or misuse; general wear and tear. This warranty this warranty does not cover any products sold ‘as is’ or used in breach of manufacturer warranty, any damage from cleaning or repair by anyone without written authorization from us, any damage caused by products not used according to product instructions, consequential damage or incidental damages (except as provided for in the ACL), personal injury, lost profits, lost savings or other economic damages, loss of use of the goods, rental or hire use, damage from prolonged exposure to fire or heat, damage from fraud, intentional acts, war, hostilities, terrorism or vandalism or acts of God.
3.2. We must use our reasonable endeavors to assist you to obtain the benefit of any guarantee or warranty offered by the original supplier or manufacturer of any goods that we supply to you.
3.3. We sell our products by specification and we guarantee that they are fit for the purpose for which goods of that kind are commonly supplied. You decide what specific purpose to use them for or to re-supply them for. Further, unless specifically stated in writing on the quotation, we take no responsibility – variations in colour or texture (especially with glass).
3.4. This clause applies if something happens which is beyond our reasonable control which makes it impossible, more difficult or more expensive for us to perform our obligations in our usual way. In those cases we may wait until it is again possible for us to perform our obligations in our usual way without additional difficulty or expense and we are not liable for any delay which results. If delay or failure to deliver is caused by force majeure or labour dispute we may suspend delivery, supply or completion and/or terminate the contract. Force Majeure means an act of God, war, lightning, fire, earthquake, storm, flood, explosion, unavailability or delay in availability of equipment materials or transport, and any other cause, whether of the kind specifically enumerated or otherwise which is not within our control. Whilst we shall use reasonable endeavors to comply with your particular delivery requirements and order specifications, you will not be entitled to cancel the whole or part of an order or to claim compensation by reason of our failure to comply with your delivery requirements or minor variations to the goods as a result of changes to the manufacturing processes or specifications.
3.5. Delivery times are estimates only and we are not liable for minor delays in delivery. In this respect you agree that time is not of the essence. In the usual course, we will endeavour to make delivery is 5 weeks from order.
3.6. The law implies various terms, conditions and warranties which might apply to our supplying goods or services to you. We exclude all of those implied terms, conditions and warranties to the fullest extent permitted by law.
3.7. Provisions of the Australian Competition and Consumer Act (ACL) and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law our liability under those provisions is limited as follows: For non household goods our liability in relation to goods is limited at our option to replacement of the goods or the supply of equivalent goods; or repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or payment of the cost of having the goods repaired. Our liability in relation to services is limited at our option to the supplying of the services again; or the payment of the cost of having the services supplied again.
3.8. We are not liable for any damage for breach or negligence or otherwise, except as stated. Damage includes lost profits, lost savings, lost time, loss of or damage to goodwill, loss of or damage to data or records, and claims made against you by others.
4.1. We remain the owner of all of the goods covered by an order until you have paid the full price for those goods plus any associated charges. Payments by cheque do not count until we receive payment on the cheque. Until you become the owner of particular goods, we may enter into any premises or vehicle if we have reasonable grounds to expect that we may find any part of the goods there. If you default in paying any part of the price or associated charges in connection with an order we may re-take possession of the goods supplied under the order. That applies even if we hold some negotiable instrument or security for the amount unpaid. You acknowledge that at all times until full payment is received, we retain title (even if you go into liquidation or become bankrupt) and in no circumstances will the goods be deemed fixtures. If you resell any of the goods (even if mixed with other goods) before becoming the owner, you are acting as our selling agent and shall act as bailee although only to the absolute minimum extent necessary to protect our ownership. If the goods are sold in the ordinary course of business then you will hold the proceeds of sale on trust for us. Should we seek to recover the goods you hereby grant to us a licence to enter onto your premises to facilitate recovery of the goods and indemnify us for any damage which has been caused to the goods. Risk with respect to the goods (including any loss, damage or deterioration) shall pass to you immediately when the goods leave our premises.
4.2. No goods may be returned to us without our prior written approval and then only upon such terms as we may require which may include inspection, re-packaging and transport costs.
5. General Conditions
5.1. We reserve the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at our absolute discretion. We may do that without telling you provided we have reasonable grounds for believing that the alternative product offered is substantially similar to that previously offered or represents an improvement.
5.2. You are bound by any certificate signed by any of our directors or solicitors which shows any amount or calculation relevant to what you owe us. The only exception is where you can prove the certificate is wrong.
6.1. If we have quoted an installation service this refers to the removal of components from wrapping and placement on floor and to the assembly of components and final placement of the products but shall not include any soft wiring or hard wiring components which you will need to have installed by a certified electrical contractor at your own cost.
6.2. Installation shall take place between 7am and 3.30pm Monday to Friday. Any request for installation at other times will be subject to further charges.
7.1. Orders must be collected or delivered within 14 days of the agreed arrival/delivery date. Storage fees of up to $400 per day may be charged if deliver or collection is dishonoured and or rescheduled.
7.2. Risk of damage to, or loss or theft of, or deterioration of, the goods (and the need to insure it) passes to you once payment is due irrespective of whether the goods are stored by us or not.
8. Other Terms:
8.1. These conditions can only varied by one of our authorised officers signing a document which states the variation, and the transaction to which the variation applies.
8.2. If any provision of this agreement shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
8.3. You are not entitled to set off against or deduct from the price any sums owed or claimed to be owed to you by us.
8.4. The failure by us to enforce any provision of term and condition of this agreement shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
8.5. The description, illustration and performance of any product contained in our catalogue, marketing material, price list or advertising does not form part of this agreement unless expressly set out in this agreement. Any representation made about fitness for purpose is only made for general guidance only and you should fully satisfy yourself that the product will meet your requirements and will be suitable for your intended purpose.
8.6. Delivery shall be at the address nominated on the quotation as the delivery address. In the event that a delivery address is not specified and/or in the event that you request us to store the goods, we may charge you for the same.
8.7. You hereby indemnify us against any liability, loss or damage we may incur or sustain as a result of the use of the goods and any failure, act or omission by you.
8.8. We may complete any blanks on any form on your behalf.
8.9. Our transactions are governed by the law of New South Wales.
9.1. Despite anything else in this agreement to the contrary, to the extent that we are liable to pay GST in connection with any taxable supply pursuant to this agreement (the affected supplies)-
9.2. We may add to each of the amounts payable by you for the affected supplies, an allowance in respect of GST as reasonably calculated by us (for past, present or future GST liabilities) and you must pay us the higher amount which results.
9.3. We may make a further charge after termination, being a further allowance in respect of any remaining GST as reasonably calculated by us and you must also pay us that charge.
9.4. Any amount payable under this agreement, including an amount payable because of the previous provisions, remains payable whether or not there is disclosure of any amount included on account of GST.
9.5. We must comply on demand with our obligations in relation to the issue of any relevant tax invoice to you.
9.6. Anything we might have said to you about GST in connection with this agreement was only intended to reflect our current understanding and may not have been applicable in your particular circumstances. We recommend that you obtain and only rely on your own independent expert advice in relation to GST in particular.
9.7. GST, tax invoice and taxable supply in this agreement have the meanings defined in A New Tax System (Goods and Services Tax) Act 1999 as may be amended or substituted from time to time. If those definitions are repealed, then those words have the meanings defined for such comparable terms as we may reasonably identify in any comparable legislation.
10. PPS Act
10.1. You waive the right to receive any notice under the Act (including notice of a verification statement) unless the notice is required by the Act and cannot be excluded.
10.2. You acknowledge that if our interest under this Agreement is a security interest for the purposes of the Act:
10.2.1. that security interest relates to the Goods and all proceeds of any kind; and
10.2.2. each sale is a security agreement for the purposes of the Act.
10.3. We may in our absolute discretion perfect any security interest held by us against any third party on whose site the Goods are located in any manner that we consider appropriate to protect our interest in the Goods.
10.4. If requested by us, you must provide us with all details as to the location of the Goods and the identity of any sub-lessee or third party that has been given possession.
10.5. (Subject always to our consent) If you sub-lease or provide the Equipment to a third party you must do everything required to ensure that your security interest has attached and is perfected by registration on the PPSR.
10.6. You undertake not to:
10.6.1. register a financing change statement in respect of a security interest contemplated or constituted by this Agreement without our prior written consent; and
10.6.2. register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without our prior written consent.
10.7. If the PPS Act applies to the enforcement of a security interest arising under this Agreement:
10.7.1. section 115(1) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
10.7.2. section 115(7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
10.8. You agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. You waive any right you may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
10.9. For the purposes of section 20(2) of the PPS Act, the collateral is the Goods. This Agreement is a security agreement for the purposes of the PPS Act.
10.10.You agree to notify us in writing of any change to your details set out in the Credit Application, within 5 days from the date of such change.