Terms & Conditions
Terms & Conditions
Disclosure of Key Terms relating to the supply of goods or services to consumers
Section 47A Fair Trading Act 1987 (NSW) (“the Act”)
Pursuant to section 47A of the Act, a supplier must, before supplying a consumer with goods or services in NSW, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer.
The following contains a summary of key terms in the attached Trading Terms between Supex Products (ABN 84 762 759 550)(Us, We, Our) and the Customer (You), which You should be made aware of as per the requirements of the Act.
Words not defined in this summary have the same meaning as set out in the Terms:
- Clause 4.2 – Exclusion of Warranties
This clause excludes all warranties not set out in the Terms or any other warranty document (to the extent possible) and makes clear that We are not liable to compensate you for:
- Any increased costs or expenses you may incur;
- Any loss of profit, revenue, business, contract or anticipated savings;
- Any loss or expense resulting from a claim by a third party; or
- Any special, indirect or Consequential Loss or damage of any nature.
- Clause 5 – Limitation of Liability
This clause limits the remedies available to You if the Goods or services provided by Us are faulty, for example we may replace the Goods or provide a refund at our election.
This clause also seeks to limit the timeframe for any claim by You relating to the short delivery of Goods.
- Clause 13 – Indemnity
This clause requires You to indemnify Us against any loss or damage We may suffer as a result of your breach of our Trading Terms, which means You will pay us any loss or damage We suffer.
Supex Products | ABN 84 762 759 550 | Trading Terms and Conditions For Sale of Goods
In these Terms unless the contrary intention appears:
Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth)
Additional Charges includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Partnership arising out of the sale of the Goods.
Consequential Loss means increased costs or expenses; loss of revenue; loss of profit or anticipated profit; loss of business; loss of business reputation; loss of opportunities; loss of anticipated savings; loss of goodwill; loss or expense resulting from a claim by a third party; special or indirect loss or damage of any nature whatsoever caused by the Partnership’s failure to complete or delay in completing the order to deliver the Goods; and any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly and naturally from that breach.
Customer means the person to or for whom the Goods are to be supplied by Partnership.
Display Equipment includes all display cabinets, display shelves, rods, posters, marketing materials and display signage which the Partnership has lent to the Customer for the purposes of displaying the Partnership’s Goods for sale at the Customer’s premises.
Force Majeure Event means any event outside the reasonable control of the Partnership including acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, interruptions of transport, government action, pandemic, epidemic or any other cause whatsoever, whether or not of a like nature to those specified herein.
Goods means the goods sold to the Customer by the Partnership and includes any services provided by the Partnership to the Customer.
Intellectual Property Right means any patent, registered design, patent, trademark, copy-right, trade secret or any other proprietary right of a third party or parties, registered or unregistered, in any country.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
Purchase Price means the list price for the goods as charged by Partnership at the date of delivery or such other price as may be agreed by Partnership and the Customer prior to delivery of the Goods.
The Partnership means Supex Products (ABN 84 762 759 550), any related bodies corporate of Supex Products (ABN 84 762 759 550), and the partnership between THE TRUSTEE FOR THE G & R KENNARD FAMILY TRUST & THE TRUSTEE FOR THE M & M KENNARD FAMILY TRUST (ABN 84 762 759 550).
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth)
2 Order for Goods
2.1 An order given to the Partnership is binding on the Partnership and the Customer, if:
2.1.1 a written acceptance is signed for or on behalf of the Partnership; or
2.1.2 the Goods are supplied by the Partnership in accordance with the order.
2.2 An acceptance of the order by the Partnership is then to be an acceptance of these Terms by the Partnership and the Customer and these Terms will override any conditions contained in the Customer’s order. The Partnership reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on the Partnership until accepted by it.
2.3 An order which has been accepted in whole or in part by the Partnership cannot be cancelled by the Customer without obtaining the prior written approval of the Partnership, which it may refuse in its absolute discretion.
3.1 The Partnership warrants that the Goods are free from defects in workmanship and materials for a period of 12 months from the date of purchase.
3.2 If the Customer is deemed to be a consumer pursuant to the Australian Consumer Law, then:
3.2.1 For Goods:
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 replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3.2.2 For Services:
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
3.3 Subject to clause 3.4, if the Goods fail to operate for any reason within the warranty period and the Goods are returned to the place of purchase at the Customer’s expense, the Partnership, at its own discretion, will either repair or replace the Goods free of charge.
3.4 The warranty is subject to the following conditions:
3.4.1 The Purchaser contacts the Partnership at either of the following address with proof of purchase:
Email address: [email protected]
Postal Address: Po Box 215 Goulburn NSW 2580
3.4.2 Upon the instructions of the Partnership, the Goods must be returned to the Partnership at the Customer’s expense.
3.4.3 The Goods must not have their, if any, serial numbers removed, defaced or changed, their casing open, their power cord altered, nor have been tampered with in any other way.
3.4.4 Failure of the Goods must not be due to misuse, improper installation, connection to the wrong voltage or other abuse or misuse.
3.4.5 The Partnership is not responsible for damage or loss caused during shipping.
3.4.6 Apart from any consumer guarantees under the Australian Consumer Law or part 8 of the Sale of Goods Act 1923 (NSW) (or both) all other warranties express or implied and whether arising by virtue of statute or otherwise are excluded.
3.5 Any Goods which are found to be faulty due to abuse, misuse or improper installation will be returned to the Customer at the Customer’s expense.
3.6 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms or in another warranty document given by the Partnership are excluded and the Partnership is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
3.6.1 any increased costs or expenses;
3.6.2 any loss of profit, revenue, business, contracts or anticipated savings;
3.6.3 any loss or expense resulting from a claim by a third party; or
3.6.4 any special, indirect or Consequential Loss or damage of any nature whatsoever caused by Partnership’s failure to complete or delay in completing the order to deliver the Goods.
4 Limitation of Liability
4.1 The Partnership’s liability is limited, to the extent permissible by law and at the Partnership’s option, to;
4.1.1 in relation to the Goods:
18.104.22.168 the replacement of the products or the supply of equivalent products
22.214.171.124 the repair of the products
126.96.36.199 the payment of the cost of replacing the products or of acquiring equivalent products; or
188.8.131.52 The payment of the cost of having the products repaired
4.1.2 Where the Goods are services:
184.108.40.206 the supply of service again; or
220.127.116.11 the payment of the cost of having the services supplied again.
4.2 To the extent permitted at law, any claims to be made against the Partnership for short delivery of Goods must be lodged with the Partnership in writing within 7 days of the delivery date.
5.1 The times quoted for delivery are estimates only and the Partnership accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of the Partnership.
5.2 Risk in accepting the Goods passes on delivery to the Customer.
5.3 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
5.4 Return of Goods will not be accepted by the Partnership except by prior agreement in writing with the Partnership. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
6 Price and Payment
6.1 The Customer must pay the Purchase Price and the Additional Charges to the Partnership.
6.2 If the Customer is in default, the Partnership may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
6.3 Where the Partnership has granted credit facilities, all payments are due within 30 days from the date of invoice.
6.4 Where the Partnership has not granted credit facilities, Goods will only be dispatched once full payment has been made.
6.5 All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.
7 Intellectual Property
7.1 All branding and artwork provided by the Customer is the intellectual property of the Customer. Artwork and branding supplied will only be used for the purposes of satisfying these Terms.
7.2 Customer warrant that the use by the Partnership of any intellectual property provided by the Customer to the Partnership so that the Partnership may provide the Goods and/or services under these Terms does not infringe any Intellectual Property Rights.
7.3 Customer must indemnify and keep indemnified the Partnership against any and all liabilities, expenses, losses and/or damages including attorney’s fees whether direct, indirect or consequential, arising from a third party, alleging that the Goods infringe the Intellectual Property Right of the third part due to the Partnership’s use in the production of the Goods of any branding, artwork or other intellectual property provided to the Partnership by Customer.
8 Retention of Title
8.1 Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with the Partnership until payment in full for the Goods and all sums due and owing by the Customer to the Partnership on any account has been made. Until the date of payment:
8.1.1 the Customer has the right to sell the Goods in the ordinary course of business;
8.1.2 the Goods are always at the risk of the Customer.
8.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
8.2.1 if any payment to the Partnership is not made promptly before the due date for payment;
8.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to the Partnership is dishonoured;
8.3 In the event of a default by the Customer, then without prejudice to any other rights which the Partnership may have at law or under this Agreement:
8.3.1 The Partnership or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
8.3.2 The Partnership may recover and resell the Goods;
8.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, the Partnership may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of the Partnership and the Customer may be ascertained. The Partnership must promptly return to the Customer any goods the property of the Customer and the Partnership is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
8.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for the Partnership. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Partnership at the time of the receipt of such proceeds. The Customer will pay the Partnership such funds held in trust upon the demand of the Partnership.
8.4 Separately, to secure payment and performance of all its obligations under these Terms the Customer grants a Security Interest (as defined by the PPSA) in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of the Partnership.
9.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
9.2 The Partnership and the Customer acknowledge that these Terms constitute a Security Agreement and entitle the Partnership to claim:
9.2.1 a Purchase Money Security Interest (“PMSI”) in favour of the Partnership over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and
9.2.2 a security interest over the proceeds of sale of the Collateral referred to in clause 8.4 as original collateral.
9.3 The Goods and Display Equipment, supplied or to be supplied, under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
9.4 The Proceeds of sale of the Collateral referred to in clause 9.2.2 falls within the PPSA classification of “Account”.
9.5 The Partnership and the Customer acknowledge that the Partnership, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.
9.6 To the extent permissible at law, the Customer:
9.6.1 waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to the Partnership.
9.6.2 agrees to indemnify the Partnership on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
18.104.22.168 registration or amendment or discharge of any Financing Statement registered by or on behalf of the Partnership; and
22.214.171.124 enforcement or attempted enforcement of any Security Interest granted to the Partnership by the Customer;
9.6.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
9.6.4 agrees to waive its right to do any of the following under the PPSA:
126.96.36.199 receive notice of removal of an Accession under section 95;
188.8.131.52 receive notice of an intention to seize Collateral under section 123;
184.108.40.206 object to the purchase of the Collateral by the Secured Party under section 129;
220.127.116.11 receive notice of disposal of Collateral under section 130;
18.104.22.168 receive a Statement of Account if there is no disposal under section 132(4);
22.214.171.124 receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
126.96.36.199 receive notice of retention of Collateral under section 135;
188.8.131.52 redeem the Collateral under section 142; and
184.108.40.206 reinstate the Security Agreement under section 143.
9.6.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
9.7 Subject to clause 10, where the Partnership has lent the Purchaser Display Equipment, the Partnership, at its discretion, may register a security interest in any Display Equipment on the PPSR.
10 Lending Display Equipment
10.1 At times, the Partnership may lend Display Equipment to the Purchaser. Where Display Equipment has been lent to the Purchaser, the Purchaser guarantees to the Partnership that:
10.1.1 The Purchaser will only use the Display Equipment to display and sell the Partnership’s Goods;
10.1.2 The Purchaser will install the Display Equipment at its own expense and will only install the Display Equipment at a location that is reasonably visible to the average person in the Purchaser’s premise;
10.1.3 The Purchaser will undisputedly allow the Partnership to register the Display Equipment under the PPSR;
10.1.4 The Purchaser will care, maintain, and secure the Display Equipment.
10.1.5 Where the Partnership has requested the return of the Display Equipment, the Purchaser is to disassemble, secure, and return the Display Equipment to the Partnership at the Purchaser’s expense within 2 weeks.
10.1.6 The Purchaser is liable for any loss or damage, whether in contract, tort, breach of any statutory duty or otherwise howsoever (including any liability for direct, indirect or consequential loss or damage of any nature whatsoever) arising out of or in connection with any Display Equipment that has been lent by the Partnership to the Purchaser.
10.2 Save where an absolute legal prohibition against exclusion and restriction of liability applies, the Partnership shall not be liable for any loss or damage, whether in contract, tort, breach of any statutory duty or otherwise howsoever (including any liability for direct, indirect or consequential loss or damage of any nature whatsoever) arising out of or in connection with any Display Equipment lent by the Partnership, in any way whatsoever, whether the same be due to any act, omission or negligence, misrepresentation, breach of any statutory duty, or breach of any condition, warranty or other term (express or implied) of any Contract or otherwise, and all conditions, warranties and other terms whether express or implied, statutory or otherwise, inconsistent with the provisions of this term are hereby excluded.
The Customer agrees that upon the on-sale of any Goods to third parties, it will:
11.1 inform any third party involved of these Terms;
11.2 inform any third party of the Partnership’s product warranties if any; and
11.3 not make any misrepresentations to third parties about the Goods.
12 Trustee Capacity
If Customer is the trustee of a trust (whether disclosed to the Partnership or not), Customer warrants to the Partnership that:
12.1 Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
12.2 Customer has the right to be indemnified out of trust assets;
12.3 Customer has the power under the trust deed to enter into this Agreement; and
12.4 Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising the Partnership.
To the full extent permitted by law, Customer will indemnify the Partnership and keep the Partnership indemnified from and against any liability and any loss or damage the Partnership may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
14 Force Majeure
14.1 The Partnership will not be liable for the consequences of any failure or delay in performing any of its obligations under these Terms to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event.
14.2 If a Force Majeure Event arises, the Partnership will notify the Customer in writing of the Force Majeure Event and the likely impact it will have on the Partnership’s performance under these Terms. If the Force Majeure Event affects the capacity of the Partnership to complete its material obligations under these terms in a timely manner, the Partnership may by notice to the Customer terminate this Agreement without any liability whatsoever on its part arising from that termination.
15.1 Neither party excludes or limits the application of any statute (including but not limited to the Competition and Consumer Act 2010 (Cth) (CCA) as amended from time to time and its schedule 2, the Australian Consumer Law), where to do so would contravene that statute or cause a provision of these Terms to be void. Any stated exclusion or limitation in this Terms is only to the full extent permitted at law.
15.2 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.
15.3 These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
15.4 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
15.5 No waiver of any of these Terms or failure to exercise a right or remedy by the Partnership will be considered to imply or constitute a further waiver by the Partnership of the same or any other term, condition, right or remedy.