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1. Definitions
In these Terms:
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act;
"Agreement" means any agreement for the provision of goods or services by F.A.MAKER to the Customer;
"consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement;
"Customer" means the person, jointly and severally if there is more than one;
"Goods" means Goods supplied by F.A.MAKER to the Customer;
"GST" means any consumption tax imposed by government, whether at point of supply or at some other specified occurrence, by whatever name, and includes (without limitation) a goods and services tax, a broad based consumption or indirect tax and value-added tax;
"Services" means services supplied by F.A.MAKER to the Customer;
"F.A.MAKER" means F.A.MAKER Pty Ltd (ABN 86 004 151 795); and
"PPSA" means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
"Tax invoice" means a tax invoice which complies with the definition contained in section 29-70 of A New Tax System (Goods and Services Tax) Act 1999 or any amending legislation.
"Terms" means these Terms and Conditions of Sale;
2. Basis of Contract
2.1 Unless otherwise agreed by F.A.MAKER in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms or conditions.
2.2 Any quotation provided by F.A.MAKER to the Customer for the proposed supply of Goods or Services:
(a) is an invitation only to the Customer to place an order based upon that quotation; and
(b) is valid for 30 days, subject to prior sale to another customer; and
(c) may include additional terms that are not inconsistent with the Terms; and
(d) must be in writing.
2.3 An Agreement is accepted by F.A.MAKER when F.A.MAKER accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the Goods or Services.
2.4 F.A.MAKER in its absolute discretion may refuse to accept any order.
2.5 F.A.MAKER may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
3. Pricing
3.1 Each amount, of whatever description, specified as payable by the Customer to F.A.MAKER under any agreement is expressed net of GST and any other taxes, duties or imposts imposed on or in relation to the Goods or Services in Australia or overseas. In addition to the amount payable, the Customer must pay to F.A.MAKER, on demand, the GST payable by F.A.MAKER in respect of that amount plus any other taxes, duties or imposts payable by F.A.MAKER.
3.2 The Customer must pay for all costs associated with the carriage and insurance of the Goods from F.A.MAKER's nominated address unless otherwise agreed.
3.3 F.A.MAKER reserves the right to vary its prices, without notice to the Customer, up to the time the final confirmation of the order is given by F.A.MAKER.
3.4 Where there is a change in the costs incurred by F.A.MAKER that are outside the control of F.A.MAKER in relation to the Goods or Services, F.A.MAKER may vary its price for the Goods or Services to take account of such change even after the final confirmation of order is given by F.A.MAKER.
4. Payment
4.1 Payment in full for Goods or Services must be made prior to the removal of Goods from F.A.MAKER's nominated premises, unless otherwise agreed by the parties in writing.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Payment terms may be revoked or amended at F.A.MAKER's sole discretion immediately upon giving the Customer written notice.
4.4 The time for payment is of the essence.
5. Payment Default
5.1 If Customer defaults in payment by the due date of any amount payable to F.A.MAKER , then all money which would become payable by the Customer to F.A.MAKER at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and F.A.MAKER may, without prejudice to any of its other accrued or contingent rights:-
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus 2 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on an indemnity basis) incurred by it resulting from the default, and in taking whatever action it deems appropriate to recover any sum due;
(c) cease or suspend the supply of any further Goods or Services to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer;
(e) without effect on the accrued rights of F.A.MAKER under any contract.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at F.A.MAKER's option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or receiver and manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. Passing of Property
6.1 Until F.A.MAKER receives full payment in cleared funds for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to F.A.MAKER by the Customer:-
(a) title and property in all Goods remain vested in F.A.MAKER and do not pass to the Customer;
(b) the Customer must hold the Goods as fiduciary bailee and agent for F.A.MAKER;
(c) the Customer must keep the Goods separate from its goods and maintain F.A.MAKER's labelling and packaging;
(d) the Customer must hold the proceeds of any sale of the Goods or the proceeds of any manufacturing or construction process as relates to the Goods for or by the Customer or any third party, on trust for F.A.MAKER in a separate account with a bank to whom the Customer has not given security,, however, the failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(e) in addition to its rights under the PPSA,, F.A.MAKER may, without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other goods not the property of F.A.MAKER, and for this purpose the Customer irrevocably licences F.A.MAKER to enter such premises and also indemnifies F.A.MAKER from and against all costs, claims, demands or actions by any party arising from such action.
7. Personal Property Securities Act
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and F.A.MAKER has a Purchase Money Security Interest in all present and future goods supplied by F.A.MAKER to the Customer and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by F.A.MAKER on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from F.A.MAKER's premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 F.A.MAKER and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on F.A.MAKER will apply only to the extent that they are mandatory or F.A.MAKER agrees to their application in writing; and
(b) where F.A.MAKER has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Customer must immediately upon F.A.MAKER's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by F.A.MAKER to be relevant to its security position such agreements and waivers (including as equivalent to those above) as F.A.MAKER may at any time require.
7.8 F.A.MAKER may allocate amounts received from the Customer in any manner F.A.MAKER determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the F.A.MAKER.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
8. Transport, Risk and Insurance
8.1 The Customer must organise carriage of the Goods from F.A.MAKER's nominated premises within 7 days of notification that the Goods are ready.
8.2 If the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
8.3 The risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods leaving F.A.MAKER's premises, possession or control.
8.4 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods sold by F.A.MAKER, unless recoverable from F.A.MAKER on the failure of any statutory guarantee under the ACL.
9. Performance of Contract
9.1 Any time or date for provision of Goods or Services stated by F.A.MAKER is an estimate only and is not a contractual commitment.
9.2 F.A.MAKER will use its best reasonable endeavours to meet any estimated dates for provision of the Goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
9.3 If F.A.MAKER cannot complete the Services by any estimated date, it will complete the Services within a reasonable time.
10. Acknowledgments
10.1 The Customer acknowledges that :
(a) Goods purchased from F.A.MAKER are not manufactured by F.A.MAKER, nor custom built by F.A.MAKER for the Customer's purpose.
(b) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by F.A.MAKER in relation to the Goods or Services or their use or application.
(c) it has not made known, either expressly or by implication, to F.A.MAKER any purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the use of the Customer.
11. Pre Delivery Inspection
11.1 The Customer is required to make its own assessment as to the condition of the Goods.
11.2 F.A.MAKER recommends the Customer inspects Goods prior to purchase, either itself or through an agent. If the Customer declines inspection, it does so at its own risk.
11.3 Where F.A.MAKER supplies second hand goods it will endeavour to supply the Customer all the information that is provided with the Goods. F.A.MAKER provides no warranty as to the accuracy of the information contained in any literature accompanying the Goods.
11.4 Where goods are sold as scrap or for parts, F.A.MAKER expressly excludes any liability pursuant to Occupational Health and Safety laws if the Customer subsequently uses the scrap or parts in the work place. The Customer indemnifies F.A.MAKER against any loss or damage arising from the use of Goods sold as scrap, or for parts, in the workplace.
11.5 Subject to clauses 11.6 and 11.9, F.A.MAKER will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies F.A.MAKER with full details and description within 7 days of delivery otherwise the Customer is deemed to have accepted the Goods.
11.6 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by F.A.MAKER, F.A.MAKER may, at its option, replace the goods, or refund the price of the Goods.
11.7 Subject to clause 11.9, F.A.MAKER will not under any circumstances accept Goods for return that:
(a) have been specifically produced, imported or acquired to fulfil the Agreement; or
(b) have been altered in any way.
11.8 Subject to clause 11.9, where the Customer is not satisfied with the Goods but clauses 11.6 and 11.7 do not apply, they may be returned within 7 days less any reasonable expenses incurred by F.A.MAKER.
11.9 If the Customer is a consumer, nothing in this clause 11 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
12. Liability
12.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Goods or Services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, or any contractual remedy for their failure.
12.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against F.A.MAKER for failure of a statutory guarantee under the ACL.
12.3 If the Customer on-supplies the Goods to a person who is a consumer:
(a) if the Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of F.A.MAKER's liability to the Customer;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of F.A.MAKER's liability to the Customer;
howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party.
12.4 If clause 12.2 or 12.3do not apply, then other than as stated in the Terms or any written warranty statement F.A.MAKER is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
12.5 F.A.MAKER is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, other than if the Customer is a consumer, then to the extent the loss was reasonably foreseeable.
12.6 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
13. Cancellation
13.1 If F.A.MAKER is unable to deliver or provide the Goods or Services, then F.A.MAKER may cancel the Customer's order (even if it has been accepted) by written notice to the Customer.
13.2 No purported cancellation or suspension of an order or any part thereof by the Customer is binding on F.A.MAKER once the order has been accepted by F.A.MAKER.
14. Force Majeure
14.1 F.A.MAKER is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of god, acts or threats of terrorism or war. If an event of force majeure occurs, F.A.MAKER may suspend or terminate the Agreement by written notice to the Customer.
15. Privacy
15.1 F.A.MAKER is bound by the Privacy Amendment (Private Sector) Act 2000 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principles.
15.2 F.A.MAKER requires that the Customer comply with the National Privacy Principles in connection with any personal information supplied to it by F.A.MAKER in connection with any Agreement.
16. Miscellaneous
16.1 The law of Victoria from time to time governs the Terms. The parties agree to the exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.
16.2 F.A.MAKER's failure to enforce any of these Terms shall not be construed as a waiver of its rights.
16.3 If any Term is unenforceable it shall be read down to be enforceable or, if it cannot be read down, the term shall be severed from the Terms without affecting the enforceability of the remaining terms.
16.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
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