Securities Act 2009 (Cth).
4. PLACEMENT OF ORDERS
6. SUPPLY AND DELIVERY OF GOODS
7. PAYMENT AND CREDIT POLICY
7.4. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed Credit Application Form.
7.5. Any credit granted may be revised by the Supplier at any time and at its discretion. 7.6. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these Terms of Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of
7.7. The Customer agrees that upon such withdrawal, any and all monies owing on the
account shall become immediately due and payable.
8. GOODS AND SERVICES TAX
8.1. GST refers to Goods and Services tax under the Goods and Services Act 1999 (“GST Act”) and terms used herein have the meanings contained within the GST Act.
8.2. It is hereby agreed between the Customer and the Supplier that the consideration for
the Supplier expressed in this Agreement is exclusive of the Supplier’s liability of GST. 8.3. On sale, the Customer will pay to the Supplier, in addition to the total purchase Price, the amount payable by the Supplier of GST on the taxable supply made by the Supplier under this Agreement and the Supplier shall deliver to the Customer a Tax
Invoice for the supply in a form which complies with the GST Act and Regulations.
9. DISHONOUR OF CHEQUE
9.1. If any cheque issued by the Customer or by any third party in payment of the Price is
dishonoured the Supplier may refuse to supply any further Goods until satisfactory
payment is received in full, including bank fees and charges.
9.2. The Supplier is entitled to treat the dishonour of the Customer’s cheque as a
repudiation of this Agreement and to elect between terminating this Agreement or affirming this Agreement, and in each case claiming and recovering compensation for loss or damage suffered from the Customer.
9.3. The Customer may be liable for a dishonoured cheque fee of $40.00.
10.1. Invoices issued by the Supplier shall be due and payable before the provision of Goods for Non-Account Customers, and invoices issued by the Supplier shall be due and payable within thirty (30) days from the end of month on the invoices for Account Customers (“Default Date”) depending on terms agreed with the Supplier. Without prejudice to any other rights of the Supplier, the Customer may be charged account keeping fees of $25.00 monthly on any payment in arrears.
10.2. If the Supplier does not receive the Outstanding Balance for the Price on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, forward the Customer’s outstanding account to a debt collection agency for further action. The Customer acknowledges and agrees that:
10.2.1. After the Default Date, the Outstanding Balance shall include, but not limited to, all applicable fees and charges under this Agreement;
10.2.2. The Supplier may, in its discretion, calculate interest at the rate of two per centum (2%) higher than the rate for the time being fixed from time to time under Section 100 of the Civil Procedure Act 2005 (NSW) for all monies due by Customer to the Supplier.
10.2.3. In the event of the Customer being in default of the obligation to pay and the overdue account is then referred to a debt collection and/or law firm for collection and the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply:
Original Debt x 100
Commission = 100 – Commission % charged by the agency (including GST)
10.2.4. In the event the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au.
10.2.5. In the event where the Supplier or the Supplier’s agency refers the overdue account to a lawyer the Customer shall also pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis
11. RISK AND LIABILITY
11.1. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to execute the Order.
11.2. The Supplier takes no responsibility if the specifications are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
11.3. The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and the Supplier relies upon the integrity of the information supplied to it.
11.4. The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.
11.5. The Supplier takes no responsibility for representations made in relation to the Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer.
11.6. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any claims in respect of faulty or defective design of any Goods supplied and/or any loss incurred as a result of delay, or failure to provide the Goods or to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
11.7. The Supplier does not represent that it will carry out any Services and/or provide and/or deliver any Goods unless it is included in the Quote.
11.8. The Customer accepts risk in relation to the Goods when the Goods pass to his care and/or control.
12.1. The Customer may accept the return Goods not subject to a warranty claim under Clause 13 for credit and/or replacement if the Goods are defective or not supplied in accordance with the Order and/or Quote and/or these Terms and Conditions.
12.2. The Customer shall notify the Supplier within seven (7) days from the date of delivery and forward the tax invoice(s) provided by the Supplier for the Goods which are the subject of the return and permit the Supplier to inspect the Goods (within a reasonable time) after notification.
12.3. The Customer shall only return Goods if the Supplier agrees to accept the return of the Goods and the Supplier may apply a restocking fee of twenty per centum (20%) of the Price on the Goods returned.
13.1. The Supplier warrants that the rights and remedies to the Customer in this Agreement for warranty against defects are in addition to other rights and remedies of the Customer under any applicable Law in relation to the goods and services to which the warranty relates.
Warranty for Goods
13.2. The warranty for Goods supplied shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. The Supplier will use its best endeavours to assist the Customer with any claim with respect of the Goods.
13.3. The Customer continues to be responsible for all amounts owing to the Supplier in the event that any Goods are supplied on the basis that a manufacturer’s warranty is in place and it subsequently becomes known to the parties that the warranty is void or inapplicable.
13.4. The Supplier warrants: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replace if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
13.5. Warranty for Goods shall only cover the cost of Goods. The Customer acknowledges that additional costs incurred, such as labour and/or freight, must be borne by the Customer.
Claims made under Warranty
13.6. Subject to clause 13.2 of this Agreement, the Customer must send the claim in writing together with proof of purchase to the Supplier’s business address stated in clause 2.1 of this Agreement, or email the claim together with the proof of purchase to the Supplier at [email protected] t.au , or contact the Supplier on (02) 4966 8433.
13.7. Goods where a claim is made are to be returned to the Supplier or are to be left in the state and conditions in which they were delivered until such time as the Supplier or its Agent has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.
14. RETENTION OF TITLE
14.1. While the risk in Goods shall pass on delivery and/or supply (including all risks associated with unloading), legal and equitable title in the Goods shall remain with the Supplier until full payment of all Goods supplied by the Supplier to the Customer is made. Pending such payment the Customer:
14.1.1. Shall hold the Goods as Bailee for the Supplier and shall return the Goods to the Supplier if so requested.
14.1.2. Agrees to hold the Goods at the Customer’s own risk and is liable to compensate the Supplier for all loss or damage sustained to the Goods whilst they are in the Customer’s possession.
14.1.3. The Customer should store the Goods separately and in such a manner that it is clearly identified as the property of the Supplier and keep the Goods insured to full replacement value.
14.1.4. The Customer must not allow any person to have or acquire Security Interest in the Goods whilst the Goods are in the Customer’s possession.
14.1.5. The Customer may sell and/or use the Goods in the ordinary course of business. 14.1.6. If the Goods are resold before all monies are paid to the Supplier, the Customer shall
hold the proceeds of sale in a separate identifiable account on trust for the Supplier and promptly account the Supplier for those proceeds in payment of the Price for the Goods.
14.2. The Supplier is authorised to enter the Premises or the premises where the Customer stores the Goods without liability for trespass or any resulting damage in retaking possession of the Goods until the accounts owed to the Supplier by the Customer are fully paid.
14.3. Notwithstanding the provisions above, the Supplier shall be entitled to issue legal proceedings to recover the Price of the Goods.
15. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)
15.1. The Customer acknowledges that these Terms and Conditions will constitute a Security Agreement which creates a Security Interest in favour of the Supplier over all present and after acquired Goods and/or Services supplied by the Supplier to the Customer to secure the payment of the Price or any other amount owing under this agreement from time to time including future advances.
15.2. The Customer acknowledges that by accepting these Terms and Conditions and by virtue of the retention of title clause as provided for in Clause 13, the Security Interest is a Purchase Money Security Interest (“PMSI”) as defined under Section 14 of the PPSA for all present, after acquired Goods and/or Services including any Commingled Goods.
15.3. The Security Interest will continue to apply as an interest in the Collateral for the purposes of PPSA with priority over registered or unregistered Security Interest.
15.4. The Supplier may register the Security Interest as PMSI on the Personal Property Securities Register (“PPSR”) under the PPSA without providing further notice to the Customer.
15.5. The Customer agrees the Supplier is not required to disclose information pertaining to the Supplier’s Security Interest to an interest party unless required to do pursuant to PPSA or under the general law.
15.6. The Customer agrees and undertakes:
15.6.1. To sign any documents and/or provide further information reasonably required by the
Supplier to register Financing Statement or Financing Change Statement on the
15.6.2. To indemnify the Supplier for all expenses and/or costs incurred by the Supplier in
registering a Financing Statement or Financing Change Statement on PPSR including the costs of amending, maintaining, releasing and enforcing any Security Interests in the Goods;
15.6.3. Not to register and/or make a demand to alter a Financing Statement in the Collateral without prior written consent of the Supplier;
15.6.4. To provide the Supplier with 7 days written notice of any change or proposed change to the Customer’s business name, address, contact details or other changes in the Customer’s details registered on the PPSR;
15.6.5. To waive any rights of enforcement under Section 115 of the PPSA for Collateral not used predominantly for personal, domestic or household purposes;
15.6.6. To waive any rights to receive Verification Statement in respect of any Financial Statement or Financing Charge Statement under Section 157 of the PPSA.
16. TERMINATION AND CANCELLATION Cancellation by Supplier
16.1. The Supplier may cancel any Order to which these Terms and Conditions apply or cancel delivery of Goods at any time before the Goods are delivered provided by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
16.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
16.2.1. Any money payable to the Supplier becomes overdue; or
16.2.2. The Customer becomes insolvent, convenes a meeting with its creditors or proposes
or enters into an arrangement with creditors, or makes an assignment for the benefit
of its creditors; or
16.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Customer or any asset of the Customer.
Cancellation by Customer
16.3. Any Order cannot be cancelled by the Customer unless expressly agreed to by the Supplier in writing.
16.4. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
16.5. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.
17.1. The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment and the Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.
18. AGREED USE
18.1. The Customer acknowledges that the Customer may forfeit any rights if any, he may have against the Supplier if the Goods are applied for any other use to which the Goods are not intended for and/or not in accordance with any applicable manual and/or any alteration to the Goods is carried out other than in accordance with intended alterations and/or the Goods are not repaired by an authorised repairer.
18.2. The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way and shall indemnify in full the Supplier, its servant and its agents in relation to all such claims.
19. PRIVACY ACT 1988
19.1. The Customer and/or the Guarantor/s agrees that for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Supplier.
19.1.1. That the Supplier may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
19.1.2. The Customer consent to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
Competition Terms and Conditions
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