Terms and Conditions (Standard)
These Terms and Conditions (Conditions) constitute the entire agreement between Austra Energy Group Pty Ltd (Company) and the customer in relation to the sale and purchase of Goods. Additional terms and conditions apply to purchases made on credit. Every order for the supply of Goods (Order) submitted to the Company by or on behalf of the customer will be subject to these Conditions and no terms or conditions contained in an Order will amend or override these Conditions (Unless specifically stated otherwise in the Order). In these Conditions, “Goods” refers to any goods supplied, or to be supplied, by the Company to the customer.
CUSTOMER NOT A CONSUMER
The customer acknowledges that these Conditions are not intended to apply to customers who would fall within the definition of a ‘consumer’ under the Competition and Consumer Act 2010 (Cth). The Customer acknowledges and agrees that the Company’s belief at the time of selling the Goods is that the customer is purchasing Goods for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land.
The Prices payable by the customer for Goods are as agreed between and the customer. The Company reserves the right at any time without notice to the customer to vary the prices of Goods where the cost of supply of the Goods is affected due to circumstances beyond the Company’s control (Including variations in the Company’s purchase contracts, currency exchange rates, labour and material costs, transport costs. taxes, levies, imposts, duties, premiums, fees or charges however designated and the correction of errors and omissions).
The Company’s terms are strictly net and prices quoted for the Goods are exclusive of freight, delivery, insurance, handling and any other expenses relating to the goods, which wil be charged to and paid by the customer. The customer must pay any applicable GST at the same time and in the same manner as payment of the price for the Goods.
Unless the customer has a credit account with the Company, the customer must make payment in full to the Company at the time of submitting the order. The Company will accept payment in accordance with the terms set out in the Order.
The Company charges a 2% surcharge in respect of all payments made by credit card. The customer agrees to pay this surcharge for all credit card payments made to the Company. The surcharge must be paid at the same time as payment for the Good is processed on the credit card. A late payment charge will be paid by the customer to the Company at the rate specified in the Penalty Interest Rates Act 1983 plus 2% on any amount that remains unpaid by the customer from the date payment is due until the date such amount and any associated default costs are paid to the Company in full.
All Orders must be placed by the customer in writing and are subject to review and acceptance by the Company. The customer acknowledges that in placing an Order with the company it has entered into a legally binding contract with the Company on the basis of these Conditions. As Order will be binding on the Company and the customer if:
- Written acknowledgment and acceptance of the Order is provided by the Company to the customer; or
- The Goods the subject of the Order are delivered to the customer, its servants, agents or carrier; or
- The Company has taken steps to procure the Goods for the customer; or
- The Company accepts payment from the customer in part or whole for the Goods.
No Order may be cancelled or altered by the customer in any way without the Company’s prior written consent.
The Company will deliver, or procure the delivery of, the Goods to or make them available for collection at the location agreed between the parties in writing, and if there is no agreement then at the location determined by the Company.
The Company will use reasonable endeavours to meet its delivery schedule. However any projected delivery dates are estimates only and the Company will not be liable for any loss or damage caused by late delivery. Delayed delivery of Goods does not constitute grounds for cancellation of the Order by the customer. The Company reserves the right to make deliveries by instalments and the Order will be applicable as to any such instalment. Delay in delivery or other fault or defect in any instalment will not relieve the customer of its obligation to accept and pay for deliveries remaining under the Order.
If the customer fails to collect or accept delivery of Goods then the risk in those Goods passes to the customer from the time of that failure as determined by the Company. If this occurs, the Company will be entitled to the price of the Goods as if they had been delivered. Any claims by the customer for shortfall in delivery must be made in writing within three business days after the date on which the Goods are delivered.
RISK AND TITLE
Title in the Goods will only pass from the Company to the customer upon receipt in full by the Company of all amounts owing to the Company by the customer. Until such time, the customer holds the Goods as bailee for the Company.
The Company reserves the following rights in relation to the Goods until all accounts and moneys owed by the customer to the Company are paid to the Company in full:
- Legal Ownership.
- to enter the customer’s premises (or the premises of any associated company or agent) where the Company reasonably believes the Goods to be located, without liability for trespass or any resulting damage and re-take possession of the Goods; and
- to keep or re-sell the Goods repossessed pursuant to this clause.
The customer must insure all Goods that the customer holds as bailee for the Company against damage and theft for an amount not less than the price paid by the customer for the Goods
If, prior to payment in full to the Company, the customer re-sells the Goods, then the customer must hold such part of the proceeds of that sale as represents the invoice price of the Goods sold in a separate identifiable account as the beneficial property of the Company. The customer will pay such amount to the Company upon request.
Risk of loss or damage to the Goods passes from the Company to the customer on the earliest of the following events:
- the customer taking possession of the Goods; or
- completion of the loading of the Goods onto a transportation vehicle provided by the customer; or
- delivery by the Company to the location agreed between the parties in writing or, if there is no agreement, then at the location determined by the Company.
RETURN OF GOODS
Except as required by law, the Company will not be under any obligation to accept Goods returned by the customer and will do so only on terms agreed by the Company in writing on a case by case basis or in accordance with any published returns policy that the Company may from time to time have in place.
The Company requires proof of purchase to be provided for all refund requests.
The Company is not obliged to accept a return of Goods or to provide a refund if the customer changes their mind or makes a wrong decision about the Goods, but may do so in the Company’s absolute discretion. If the Company does accept a return of the Goods where the customer has changed their mind or made a wrong decision about the Goods, then the Company may deduct a handling and re-stocking fee equal to 25% of the purchase price for the Goods and then refund the balance of the purchase price to the customer.
All rights pertaining to industrial or intellectual property in connection with the Goods (including to documents, designs, plans and specifications and the like) are expressly reserved. The customer will not do or cause or permit to be done anything in contravention of such rights subsisting in the Goods or any components or parts of them.
The Company will extend to the customer any warranty received from the original manufacturer of the Goods so far as the Company is permitted to do
so. In the case of non-conforming Goods, the Company’s obligations will be limited to, at the Company’s discretion and option:
- refunding the price of the Goods;
- replacing the particular Goods; or
- otherwise correcting the non-conformance of any Goods for which written notice of non-conformance under any applicable warranty is received by the Company within the applicable warranty period.
Non-conforming Goods must be returned to the Company’s premises (or as the Company otherwise directs) during normal business hours within 5 business days of the Company receiving the notice referred to in point 3 above, at the customer’s sole risk and expense.
Where the Company is required to repair Goods on-site, all travel, transport, accommodation and other such expenses incurred by the Company will be to the customer’s account, unless such expenses are covered by any applicable warranty. The customer is responsible for the cost of freight, delivery and handling of the Goods, unless these costs are covered by any applicable warranty. Whilst all reasonable care is taken, the Company will not be responsible for any loss or damage to Goods in transit.
This express warranty will not apply to Goods which the Company determines at its absolute discretion have been subjected to misuse, improper installation, repair or alteration, neglect, normal wear and tear, accidental damage, or any other cause beyond the Company’s reasonable control.
LIMITATION OF LIABILITY
To the extent permitted by law, the express warranties contained in these Conditions are given in lieu of all other conditions, warranties or representations whether statutory or otherwise, express or implied, oral or written, including any implied warranties of merchantability and fitness for a particular purpose and any warranties as to non-infringement of intellectual property rights, all of which are excluded from these Conditions. The customer acknowledges that the customer has not relied upon the skill or judgment of the Company in deciding whether the Goods are fit for any particular purpose or suitable for the customer’s needs.
Notwithstanding anything to the contrary, the liability of the Company howsoever arising will in no circumstances exceed, at the Company’s option:
- The cost of replacing the Goods;
- The cost of obtaining equivalent Goods; or
- The cost of having the Goods repaired
In no event, whether for breach of warranty, breach of contract, negligence or otherwise will the Company be liable for indirect, special, incidental or consequential damages including without limitation loss of profits or revenues and downtime costs sustained by the customer or its customers, to the full extent such may be disclaimed by law.
In no event will the Company have any liability for any loss, damages, expenses, claims or demands arising from the improper or incomplete installation of the Goods, the lack of proper maintenance of the Goods, modification of the Goods, normal fair wear and tear of the Goods, deterioration of the Goods due to normal use and exposure, damage to the Goods arising from environmental conditions, the misuse or abuse of the Goods or an accident.
Nothing in these Conditions will restrict, modify or exclude any conditions, rights, warranties or liabilities which may at any time be implied into the contract between the Company and customer by any applicable law.
To the full extent permitted by law, the customer will indemnify and at all times keep indemnified and hold the Company, its servants and agents and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) arising directly or indirectly out of the customer’s use, possession, ownership or resale to a third party or out of the use, possession. or ownership by such third party, of the Goods or any part of the Goods whether separately or in combination with any other equipment or material. The customer indemnifies the Company against all loss, expense or damage incurred or sustain by the Company as a result, directly or indirectly, of the customer failing to comply with any of its obligation under these Conditions.
The indemnity will survive the termination or expiration of the contract between the customer and the Company and will extend to cover all alleged faults or defects in the Goods or part thereof or instructions supplied for use in connection with them or out of any failure of the Goods to perform a particular task or achieve a particular specification.
The customer must pay the Company all of the Company’s fees and expenses, including administration and legal fees on a solicitor / client basis of and incidental to the Company making a demand or bringing any legal proceeding against the customer in respect of any amount that is owing by the customer to the Company at any time for a period in excess of 7 days. Such fees and expenses will be due and payable by the customer when they are incurred by the Company.
THE COMPANY’S RIGHTS
The Company reserves the right to cancel Orders or suspend any or all deliveries to the customer where the customer is in default of these Conditions.
The Company reserves the right to alter product specifications relating to the Goods without notice, provided that such alterations do not materially affect the performance of the Goods.
The customer acknowledges that incorrect installation and service of the Goods may cause loss of life, injury to persons and/or damage to property and that at all times the installation and service of Goods must be carried out by a qualified electrician or qualified renewable energy installer conversant with the installation of the Goods. All workmanship carried out in respect of the installation of the Goods is the responsibility of the contractor carrying out the works and the Company will not be held liable for any loss or damage arising from such works.
COMPLIANCE WITH LAW
The customer must effect and maintain all approvals, insurances, licences and permits necessary for the performance of its contract with the Company and must comply with all applicable laws and regulations and the requirements of any competent authority in relation to or affecting the customer’s use or possession of the Goods.
The customer will provide all information necessary to enable the Company to perform its obligations to the customer and customer will be responsible for any costs arising directly or indirectly from any error or omission or any delay in providing that information.
PERSONAL PROPERTY SECURITIES ACT
In these Conditions, ‘PPSA’ means the Personal Property Securities Act 2009 (Cth) and all regulations made under that Act. All references to “sections” are to sections of that Act.
The customer acknowledges and agrees that:
- the contract between the customer and the Company constitutes a security agreement for the purposes of the PPSA; and
- by accepting these Conditions the customer grants a security interest (by virtue of the retention of title provisions of these Conditions) to the Company in all Goods previously supplied to the customer by the Company (if any) and all goods and services that will be supplied in the future to the customer by the Company.
The customer undertakes to:
- sign any further documents and provide any further info rmation (which information the customer warrants to be complete, accurate and up to date in all respects) which the Company may reasonably require to enable registration of a financing statement or a financing change statement on the Personal Property Securities Register (PPSR) to correct a defect in such a statement.
- not register a financing change statement or make an amendment demand in relation to any security interest created by these Conditions without the Company’s prior written consent;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the Company’s prior written consent;
- give the Company at least 10 business days’ prior written notice of any proposed changes to any of the customer’s details; and
- upon demand reimburse the Company for all expenses incurred by the Company in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Conditions.
The customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA and its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4), 135 of the PPSA.
Unless otherwise agreed to in writing by the Company, the customer waives its rights to receive a verification statement in accordance with section 157 of the PPSA. The customer agrees that immediately on reque st by the Company the customer will procure from any person considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time reasonably require.
These Conditions supersede all previous representations and communications, whether written or oral. All descriptive specifications, performance figures, drawings, data, dimensions, and weights furnished by the Company or contained in its website, price lists, catalogues or advertisements are by way of general description only and do not form part of these Conditions.
Any performance figures given by the Company are estimates only and the Company will be under no liability for damages for failure by the Goods to attain such figures unless specifically guaranteed in writing and any such written guarantee will be subject to the recognised tolerances applicable to such figures. Subject to these Conditions, any advice, recommendation, information or assistance provided by the Company in relation to the Goods, whilst believed by the Company to be appropriate, is provided without liability or responsibility on the part of the Company.
Any notices or invoices to be given under these Conditions must be in writing and may be hand delivered, mailed, faxed or emailed and:
- if addressed to the customer, addressed to the address stated in the Order or otherwise advised by the customer to the Company in writing; and
- if addressed to the Company, addressed to the Company’s address as stated in the Order or otherwise advised by the Company to the customer in writing.
Such notices are deemed to have been received upon delivery if hand delivered, two business days after dispatch if sent by mail, or the first business day after dispatch if sent by fax or email.
The customer releases the Company from all and any liability for and in connection with or arising out of any failure in performance of its obligations under these Conditions due in whole or in part to any cause whatsoever beyond the Company’s reasonable control.
No forbearance or other indulgence granted to the customer will in any way discharge the customer from any of the customer’s obligations under these Conditions or otherwise affect any such obligation. Any provision contained in these Conditions which is prohibited or unenforceable in any jurisdiction will be deemed to be ineffective to the extent of such prohibition or unenforceability and will not invalidate the remaining provisions nor affect the validity or enforceability of hat provision in any other jurisdiction.
The customer must not assign or transfer its rights or obligations under these Conditions without the prior written consent of the Company. These Conditions may only be varied in writing and signed by both parties . These Conditions will be governed and construed in accordance with the laws of Australia, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of Australia.