1. DEFINED TERMS
(a) ACL means the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) Contract means any agreement for the supply of Goods by SCI to the Purchaser.
(c) Delivery means delivery of the Goods as set out in clause 3 of these Terms.
(d) Excluded Loss means any consequential, indirect or special loss or damage including, without limitation, loss of profit, loss of business, loss of opportunity or loss of goodwill.
(e) Goods means any goods supplied by SCI to the Purchaser.
(f) Invoice means an invoice for an Order.
(g) Order means any purchase order or request from the Purchaser for the supply of Goods accepted by SCI.
(h) Price means the price of Goods as specified in aQuotation, Order or Invoice.
(i) PPSA means the Personal Property Securities Act 2009 (Cth).
(j) Purchaser means the purchaser of Goods and, where there is more than one purchaser, means those purchasers both jointly and severally.
(k) Quotation means a quotation from SCI to the Purchase for the supply of Goods.
(l) SCI means Southern Cross Illumination Pty Limited and its successors and assigns.
(m) Terms means these terms and conditions.
2. TERMS AND CONDITIONS
(a) These Terms apply to any Contract for the supply of Goods and all Quotations, Orders and sales relating to that supply.
(b) For the avoidance of doubt:
i. where the Purchaser places multiple or subsequent Orders, those Orders will be subject to these Terms; and
ii. where the Purchaser places an Order via its own purchasing system, that Order will be subject to these Terms and no additional terms of the Purchaser will apply.
(c) Nothing in these Terms excludes, restricts or modifies the ACL or any other legislation, where to do so is prohibited or would render any provision of these Terms void or unenforceable.
3. DELIVERY
(a) Delivery is taken to occur when the Purchaser, or the Purchaser’s nominated agent or carrier, takes possession of the Goods (Delivery).
(b) SCI may, at its option, deliver the Goods to the Purchaser in any number of instalments.
(c) Delivery times made known to the Purchaser are estimates only and are contingent on availability of supply from third parties.
(d) The Purchaser is not relieved of performance because of any late delivery of Goods.
(e) SCI is not liable for any late delivery or non-delivery of Goods due to any cause of whatever nature not within SCI’s control.
(f) A delivery charge applies for all orders under $300.00 in the Sydney metropolitan area and for all orders under $400.00 outside the Sydney metropolitan area and interstate.
4. ACCEPTANCE OF GOODS
(a) Upon Delivery, the Purchaser must inspect the Goods. Any claims against SCI regarding the quality, nature, fitness, suitability, shortage, delivery, conformance with description or defects of the Goods must be made in writing to SCI within 30 days of Delivery. SCI does not accept liability for any such claim not made in accordance with these Terms.
(b) In the event of justified objection notified by the Purchaser to SCI in accordance with these Terms, SCI may, at its option:
i. reduce the Price (or give a credit to the Purchaser) by agreement with the Purchaser;
ii. accept the return of the Goods and, subject to the Goods being returned in the same condition as when they were delivered to the Purchaser, refund to the Purchaser the Price; or
iii. replace the Goods,
and no additional claims of any nature whatsoever may be made against SCI.
(c) For all custom made or specially made products, there will be no credit or exchange given to goods that are sold as “special order” or “custom made”.
5. PAYMENT
(a) Unless otherwise stated, all applicable taxes, duties or levies (including GST) on the sale of the Goods will be to the Purchaser’s account.
(b) The Purchaser must
i. pay any deposit shown on an Invoice as required; and
ii. pay the balance of any corresponding Invoice in full within 60 days following the end of the month shown on the date of issue of the Invoice.
(c) Where payment is made in accordance with these Terms, the Purchaser will be eligible to a 5% discount on the Invoice that is being paid.
(d) Where payment is not made in accordance with these Terms, or if any payment made is subsequently dishonoured, SCI may:
i. treat the failure to pay, or the dishonour of payment, as a repudiation of that Contract, retain any deposit paid by the Purchaser and elect between terminating the Contract or affirming it, and in each case, claiming and recovering from the Purchaser compensation for loss and damage suffered;
ii. refuse to supply any further Goods until satisfactory payment is received in full;
iii. not apply the discount in (c) above;
iv. charge the Purchaser, on any outstanding amount payable by the Purchaser, interest at a rate of 5% per annum calculated daily above the Cash Rate Target specified by the Reserve Bank of Australia; and
v. recover the balance price of the Goods together with all interest from the Purchaser as a liquidated debt in a court or tribunal of competent jurisdiction, irrespective of any claim that the Purchaser may have against SCI for any thing or matter related to the Goods.
(e) The Purchaser has no entitlement to, and must not, withhold payment by reason of set-off, counter-claim or otherwise.
6. RISK AND TITLE
(a) All risk in the Goods passes to the Purchaser on Delivery.
(b) Title in the Goods passes to the Purchaser only upon payment in full. Until title in the Goods passes to the Purchaser:
i. the Purchaser must maintain the Goods in good order, condition and repair and insure the Goods for their full replacement value against all instances of loss or damage; and
ii. SCI reserves the right to enforce any of its rights under the PPSA as set out in clause 9 of these Terms, to retake possession of the Goods and to keep or resell any such repossessed Goods.
7. WARRANTY
(a) To the fullest extent permitted by the law, the only warranty given to the Purchaser in respect of the Goods is any warranty of the manufacturer of the Goods.
(b) Any advice, recommendation, information, assistance or service given by SCI in relation to Goods is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability. SCI does not accept any liability or responsibility for any loss suffered from the Purchaser’s reliance on such advice, recommendation, information, assistance or service.
8. LIMITATION OF LIABILITY
(a) To the fullest extent permitted by law, and subject to these Terms, all express and implied terms, warranties, conditions, representations and guarantees relating to the Goods (including, without limitation, as to merchantability, description, quality, nature, suitability or fitness for purpose) are excluded.
(b) To the fullest extent permitted by law, and subject to these Terms, SCI’s liability to the Purchaser or any other person is limited as set out in clause 4. SCI is not liable for any Excluded Loss, howsoever caused, suffered by the Purchaser or any other person arising from or in connection with the supply, installation or use of the Goods.
(c) To the fullest extent permitted by law, and subject to these Terms, if any provisions of the ACLor any other legislation apply, then to the extent to which SCI is entitled to do so, its liability under those statutory provisions is limited at its option to:
i. the replacement of the Goods or the supply of equivalent Goods;
ii. the repair of the Goods;
iii. the payment of the cost of replacing the Goods or acquiring equivalent Goods; or
iv. the payment of the cost of having the Goods repaired.
9. PPSA
(a) Unless otherwise defined in these Terms, the capitalised terms and expressions used in this clause9have the meanings given to them in the PPSA.
(b) The Purchaser acknowledges and agrees that it will grant to SCI a Security Interest in the Goods and their Proceeds, including any Accounts, Accessions and Commingled Goods.
(c) The Purchaser acknowledges that any purchase by it on credit terms from SCI, or any retention of title supply pursuant to these Terms, Attaches on delivery of the relevant Goods and constitutes a Purchase Money Security Interest.
(d) The Purchaser agrees that:
i. these Terms apply to the supply of Goods by SCI to the Purchaser to the exclusion of all other terms and conditions of sale or purchase to the extent permitted by law and constitute a Security Agreement pursuant to the PPSA;
ii. the Goods supplied by SCI secure the payment of the purchase price of those Goods and of any other goods supplied by SCI with priority to the fullest extent permitted by law over all other registered or unregistered Security Interests;
iii. the Purchaser will do all the things necessary in SCI’s reasonable opinion, including providing all information SCI requires, to register a Financing Statement or Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security Interest;
iv. the Purchaser will not change its name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register, without first notifying SCI in writing;
v. the Purchaser waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement in respect of any Security Interest created pursuant to these terms; and
vi. the Purchaser must pay SCI’s costs of any discharge or necessary amendment of any Registration.
(e) The Purchaser appoints and authorises SCI as the Purchaser’s attorney to sign in the Purchaser’s name all documents which SCI reasonably considers necessary to enforce or protect SCI’s rights and powers under these terms and to protect, preserve and enforce SCI’s rights under the PPSA.
10. GENERAL
(a) These Terms,and any Contract for the supply of Goods, are governed by the laws of New South Wales. SCI and the Purchaser submit to the non-exclusive jurisdiction of the Courts of New South Wales.
(b) These Terms may only be varied by written agreement of the parties.
(c) If any provision of these Terms is void, invalid or unenforceable, then such provision shall be severed to the extent of the invalidity or unenforceability and the remaining provisions shall remain in full force and effect.
(d) If SCI grants to the Purchaser any extension of time or other indulgence, the same shall not in any way affect or prejudice the rights of SCI under any Contract for the supply of Goods.
(e) Each Order between SCI and the Purchaser constitutes a separate Contract for the supply of Goods. Unless otherwise permitted in these Terms, a breach of one Contract for the supply of Goods shall not be grounds for the termination of any other Contract for the supply of Goods.
(f) If by reason of any fact, circumstance, matter or thing beyond the reasonable control of SCI or the Purchaser, either party is unable to perform in whole or in part any obligation in relation to a Contract for the supply of Goods, that party is relieved of that obligation to the extent and for the period that it is so unable to perform and is not liable to the other party in respect of such inability, except that an obligation to pay money is never excused by such circumstances.
