Core Technology Trading Terms and Conditions
In these conditions:
- Seller means PC Nation Pty Ltd ACN 123 336 390 trading as Core Technology Partners;
- Buyer means the applicant and/or entity names on the account with the Seller as listed in the application for credit;
- Agreement means this Agreement;
- Goods means all products and, if any, services, supplied by the Seller to the Buyer from time to time;
- Services means any services supplied by the Seller to the Buyer from time to time as contemplated by this Agreement or Sales Contract;
- Ident Order means an order placed by the Buyer on the Seller for goods or services not normally stocked by the Seller, and in order to satisfy the order from the Buyer, the Seller must specifically purchase such goods from a third party;
- PPSA means the Personal Properties Security Act 2009 (Cth);
- PPSR means the Personal Properties Security Register;
- Delivery means collection of the Goods from any of the Seller’s premises by or on behalf of the Buyer;
- Ex Works means that the Goods shall be made available at the Seller’s usual warehouse, works or factory location of such Goods for the purposes of loading onto the conveyors or carriers nominated by or provided by the Buyer, for which may all be conducted by third party operators nominated by the Seller;
- Return of Material Authorisation Authorisation means the document approved and issued from time to time by the Seller and authorising the return of Goods by the Buyer to the Seller in accordance with the terms and conditions contained thereon;
- Sales Contract means the contract made between the Seller and the Buyer for the supply of Goods and/or Services.
- Manufacturer means the original manufacturer of the Goods, whether in Australia or outside Australia, including its office or representative in Australia;
- C.O.D. means cash on delivery.
2. TERMS OF SERVICE & SALE
- The Goods sold by the Seller are sold on the terms and conditions contained herein and form part of the Sales Contract (express or implied) and no other sales contract for the supply of Goods shall exist between the Seller and the Buyer except upon these terms and conditions unless their exclusion or modification is agreed to in writing by the Seller.
- The Services provided by the Seller are on the terms and conditions contained herein and form part of the Sales Contract (express or implied) and no other sales contract for the supply of Services shall exist between the Seller and the Buyer except upon these terms and conditions unless their exclusion or modification is agreed to in writing by the Seller.
- The Buyer agrees that any order placed by the Buyer is deemed to be made to incorporate these terms and conditions.
- The price in relation to Goods is payable net and payment of the price of the Goods and/or Services must be made, at the Supplier’s election:
- on a C.O.D, basis upon delivery of the Goods/provision of the Services;
- by direct deposit into the Supplier’s nominated bank account prior to the Goods and/or Services being supplied; or
- by credit card, which will incur a credit card transaction fee determined by the Supplier from time to time, prior to the Goods and/or Services being supplied, unless the seller agrees to other terms of payment in writing.
- The Seller reserves the right at any time to withhold the further supply of any Goods or carry out Services in the event the Buyer fails to comply with the Seller’s terms of payment or for any other reason.
- Irrespective of whether the Buyer is on C.O.D. or other terms, any credit amount due to the Buyer is:
- not to be refunded, under any circumstances, by the Seller to the Buyer, by way of cash, cheque, electronic or other immediate or non- immediate settlement means;
- expire twelve months after the date the credit was issued by the Seller to the Buyer in the event the credit has not been offset against other orders (ident or otherwise); and
- not transferable to a third party.
- The terms of this Agreement are accepted by the Buyer upon either of the following events occurring:
- The Buyer signs and returns the trading terms and conditions to the Seller; or
- The Buyer instructs the Seller to proceed to supply the Goods or provision of Services, in which case the terms and conditions of trade are deemed to be accepted.
- Upon acceptance in accordance with the above clause the Buyer must also execute and return the Personal Guarantee Deed annexed to this Agreement, unless the Seller agrees otherwise.
- All specifications, drawings and images, particulars of weights and dimensions and other information submitted to the Buyer are as supplied by the Manufacturer and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
- The descriptions, illustrations and performance contained in catalogues, price lists, web site and other advertising matter do not form part of the Sales Contract of the Goods or Services.
- The Buyer acknowledges that neither the Seller nor any person acting on its behalf has made any representation or given any promise or undertaking not expressly set out in the Sales Contract whether as to the fitness of the Goods and/or Services for any particular purpose or any other application or matter.
- The Buyer acknowledges that without relying upon the skill or judgment of the Seller or any person acting on its behalf it has determined that the Goods and/or Services are fit for its purposes.
- Any description of the Goods and/or Services used in the Sales Contract is for identification only and does not constitute a contract of sale by description.
- The Buyer acknowledges that the inclusion of certain Goods and/or Services on price lists, catalogues, advertising material and otherwise, or a verbal quote or representation regarding goods, does not mean:
- that such Goods are items normally stocked by the Seller;
- that such Goods continue to be available from the manufacturer;
- that such Services will continue to be provided by the Seller; or
- that such Services are normally provided by the Seller.
- Where Goods and/or Services have been quoted by the Seller to the Buyer and such Goods and/or Services are no longer available the Seller is under no obligation to:
- substitute the Goods and/or Services with other Goods and/or Services, similar by description or application or otherwise, at the same price or any other price; or
- make available for current or future delivery or provision of a similar nature or improved description or application at either the price so ordered or any other particular price.
- The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its Buyers arising from the non-availability or delayed- availability of the Goods and/or Services.
6. GOOD AND SERVICES PROVIDED
All Goods and/or Services to be provided by the Seller to the Buyer are as described in the Sales Contract agreed by the Seller and the Buyer and this description prevails over all other descriptions including any specifications or enquiry of the Buyer.
- Unless otherwise agreed in writing by the Seller the price for Goods supplied and Services provided shall be at the Seller’s current price list as at the time the Sales Contract was agreed to.
- Any quotations given by the Seller to the Buyer are subject to final written confirmation.
- All prices and quotations given by the Seller are either exclusive or inclusive of tax depending on the circumstances.
- All prices quoted in relation to Goods include standard packaging. Any special packaging shall be charged to the Buyer.
- All prices displayed by the Seller electronically or otherwise, quoted verbally or otherwise, are subject to change without further or prior notice to be given to the Buyer.
- In the event of fluctuations or changes in exchange rates or duties the Seller reserves the right at any time between the time of quotation and/or order the date of delivery and/or invoicing of the Goods to increase its selling price for such Goods.
- The Seller reserved the right at any time between a quotation being given and the date of delivery of Goods or provision of Services to make adjustments to prices and quotations where there have been fluctuations in costs borne by the Seller.
8. CANCELLATION AND VARIATION
- The Seller will not accept the cancellation or alteration of any orders or orders to be undertaken by the Seller pursuant to the Buyer’s own specifications or requirements. However any cancellation is subject to worthy circumstances for approval if required.
- If the Buyer wishes to cancel the delivery of Goods or the provision of Services provided by the Seller they must give at least 24 hours’ notice, in writing, to the Seller notifying them of termination, with any pre-ordered Goods orders being incapable of cancellation.
- In the event that the Buyer wishes to terminate the agreement between the parties whereby the Seller is providing Services for a fixed period of time, then the Buyer must pay to the Seller an amount equal to the full remaining monetary obligation owed under the agreement to the Seller.
- The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
- Unless otherwise agreed to in writing, the Buyer shall bear the full cost and risk involved in bringing the Goods from the Seller’s works, warehouse or factory to the Buyer’s desired destination.
- Risk in the Goods passes to the Buyer upon delivery of the Goods to the Buyer’s nominated address or to the Buyer’s agent or third party nominated by the Buyer.
- The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its Buyers arising from late or non-delivery of the Goods.
- The Buyer shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery despatch or performance.
- The Seller may at its option deliver the Goods to the Buyer in any number of instalments.
- Failure of the Seller to deliver any one of the instalments does not entitle the Buyer to repudiate or rescind the Sales Contract.
- If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
- it is not a repudiation of the Sales Contract; and
- the defective instalment is a severable breach that gives rise only to a claim for compensation.
10. DELIVERY OF SERVICE
- The Seller will provide the Services at times stipulated in the Sales Contract to the Buyer.
- The Services that the Seller will provide to the Buyer are limited to those Services as contained in the Sales Contract only and any additional Services that the Buyer may require from the Seller may incur an additional fee.
- The Seller will attempt, in all possible circumstances, to limit the Seller’s downtime in the performance of Services.
- The Buyer agrees and acknowledges that in some cases it may be more prudent or cost effective to bring down some services in order to enable system changes.
- The Seller will, immediately on becoming aware of any actual or potential delay in providing any Services, provide the Buyer with notice as to the nature and cause of the delay and the steps being undertaken by the Seller to overcome the delay.
- The Seller will not be liable to the Buyer for any failure to perform the Services, or delay for performing the Services.
11. LOSS OR DAMAGE IN TRANSIT
- The Seller is not responsible to the Buyer or any such person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
- The Seller must provide the Buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
- has notified the Seller and the carriers in writing immediately after loss or damage is discovered on receipt or non-receipt of Goods; and
- lodges a claim for compensation on the carrier within three (3) days of the date of receipt / non-receipt of Goods.
12. RETURN OF GOODS
- Subject to the prior written approval of the Seller pursuant to a Return of Materials Authorisation the Buyer may return any Goods provided that:
- the Goods were supplied originally by the Seller to the Buyer;
- such Goods are returned (with specific identification on the Goods so as to correspond with details contained on the Return of Materials Authorisation), to the Seller’s usual works, warehouse, factory or place of business, within seven days from the date of delivery;
- the Goods, as received by the Seller, are in the same condition as when originally delivered to the Buyer; and
- the buyer pays a restocking fee determined by the Seller, at their sole discretion and if it is applicable; and
- all freight charges in respect of the returned Goods have been prepaid by the Buyer.
- The issue of a Return Materials Authorisation only authorises the Buyer to return the goods to the Seller for inspection, and:
- Receipt of the Goods by the Seller does not constitute acceptance of the Goods credit, repair or replacement;
- The Seller shall inspect the Goods as soon as possible to ensure compliance with the terms of the Return Materials Authorisation and remains under no obligation to accept the returned Goods; and
- The Seller will return Goods to the Buyer at the Buyer’s expense for any Goods not accepted.
- The Seller will not accept the return of any Ident Order or orders undertaken by the Seller pursuant to the Buyer’s own specifications or instructions.
- The Seller shall, upon acceptance of Goods in accordance with this clause, credit to the Buyer’s account the original Sales Contract value of the Goods or the price current on the day of receipt, whichever is the lesser in value.
- The Seller may, from time to time, at its discretion, authorise for return Goods outside of the terms on either the Return Materials Authorisation.
- In the event the Seller authorises for return goods as described above, and subject to clause 12.2 above, the Seller may, at its discretion, either:
- return the Goods to the Buyer at the Buyer’s expense; or
- accept such Goods for return and credit to the Buyer’s account the original Sales Contract value of the Goods or the price current on the day of receipt, whichever is the lesser, less a restocking fee of not less than twenty per cent of the invoiced value of the Goods (with a minimum fee of $25).
- All credits pursuant to the above shall be given to the Buyer and where:
- the Buyer enjoys a credit account with the Seller, be credited to the account of the Buyer; or
- the Buyer is on C.O.D. terms with the Seller, be credited against the C.O.D. trading account which shall create a temporary credit account with the Seller to the extent of that credit, and shall revert to a C.O.D. trading account when such credit is fully offset against any number of future orders (ident or otherwise).
- All credits given by the Seller will not be refunded, under any circumstances, by the Seller to the Buyer, by way of cash, cheque, electronic or other immediate or nonimmediate settlement means and will not be applied to a third party.
13. GUARANTEE AND WARRANTY
- The guarantee of the Manufacturer of the Goods is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the Manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied.
- Except as provided in these conditions, all express and implied warranties, guarantees and conditions under the statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
- The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way whatsoever.
- If the Buyer makes default in any payment, commits any act of bankruptcy or enters into involuntary liquidation or any scheme of arrangement with its creditors the Seller may at its option withhold further deliveries or cancel any Sales Contract for the supply of Goods or provision of Services without prejudice to its rights thereunder.
- In the event of default under this clause, the Seller may, at its discretion:
- elect to apply an interest charge against the Buyer’s account at the rate of 1.5% of the outstanding monies per month or part thereof;
- Charge an administration fee each month, or portion thereof, that an amount owing by the Buyer is overdue;
- Commence proceedings against the Buyer or enforce any personal guarantee;
- Call and act upon any security interest that the Seller is entitled to enforce;
- Recover against the Buyer all moneys that are owed to the Seller including incidental costs that are incurred in relation to the Buyer’s default;
- list the default in payment with the appropriate credit reporting agency; and/or
- perform any other action that the Seller deems appropriate to enforce this Agreement and recovery monies owed.
- All prices contemplated by this Agreement and Sales Contract are exclusive of and subject to GST.
- A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
- The parties acknowledge that GST is imposed on a supply made under or in connection with this Agreement and that the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable by the Principal to the Service Provider at the same time as the consideration to which the additional consideration relates.
- The Seller will issue a tax invoice to the Buyer of the supply at the time of payment of the GST inclusive consideration or at another time agreed by the parties.
- If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
- The Buyer must pay any taxes in relation to the receipt of the Services.
- The Buyer hereby authorises the Seller to collect, retain, record, use and disclose personal information about the Buyer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Seller, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
- The Buyer also authorises the Seller to make enquiries with respect to the Buyer’s credit worthiness; to exchange information with other Credit Providers in respect to previous defaults of the Buyer and to notify other Credit Providers of a default by the Buyer.
- Despite anything to the contrary contained in this Agreement herein or any other rights which the Seller may have:
- where the Buyer is the owner of land, realty or any other asset capable of being charged, the Buyer agrees to mortgage and/or charge all of its interest in the said land, realty or any other asset to the Seller or the Sellers’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer acknowledges and agrees that the Seller (or the Seller’s nominee) is entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met;
- should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer shall indemnify the Seller from and against all of the Sellers costs and disbursements including legal costs on a solicitor and own client basis; and
- the Buyer agrees to irrevocably nominate constitute and appoint the Seller or the Sellers nominee as the Buyer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
- In this clause all terms have the meaning given to them in the PPSA.
- Property includes all Goods supplied by the Seller to the Buyer, including but not limited to Goods, as described on the invoices, quotation, Sales Contract, work authorisation or other form as approved by the Seller and includes Services relating thereto.
- This clause considers Property be to PPSA Retention of Title Property in accordance with s51F of the Corporations Act 2001 (Cth).
- If the Seller grants credit terms to the Buyer, then to secure the punctual payment of all amounts owed by the Buyer to the Seller, the Buyer grants to the Seller:
- A Security Interest over all present and after-acquired property of the Buyer in relation to which the Buyer can be grantor of a security interest under the PPSA; and
- a Security Interest over all Property (including any proceeds of that Property) supplied on retention of title terms to the Buyer by the Seller pursuant to the terms of this Agreement.
- The Buyer acknowledges that this Agreement:
- Constitutes a security agreement;
- Creates a security interest in all Goods previously supplied by the Seller to the Buyer; and
- Creates a security interest in all Goods that will be supplied in the future by the Seller to the Buyer.
- The Buyer agrees to promptly sign any further documents and/ or provide any further information which the Seller may reasonable require to:
- register a financing statement or financing change statement in relation to a security interest on the PPSR;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in this clause.
- The Buyer agrees to indemnify, and upon demand reimburse the Seller for all expenses incurred in registering a statement referred to in this clause on the PPSR or releasing any Goods charged thereby.
- The Buyer agrees not to register a financing change statement in respect of a security interest without the prior written consent of the Seller.
- The Buyer agrees not to 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 prior written consent of the Seller.
- The Buyer agrees to immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
- The Seller and the Buyer agree to expressly exclude the operation of the following provisions of the PPSA from this Agreement:
- Section 96;
- Section 115; and
- Section 125 of the PPSA.
- The Buyer waives its rights to receive notices under:
- Section 95;
- Section 118:
- Section 121(4);
- Section 130;
- Section 132(3)(d); and
- Section 132(4) of the PPSA.
- The Buyer waives its right to receive a verification statement under section 157 of the PPSA.
- The Buyer waives its rights as a grantor/ debtor under:
- Section 142; and
- Section 143 of the PPSA.
- The Buyer agrees to unconditionally ratify an action taken by the Seller under this section.
- The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Buyer in relation to the provision of the Goods which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
- The Seller disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Buyer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non- excludable Rights. To the extent permitted by law, the liability of the Seller for a breach of a Non-Excludable Right is limited, at the Seller’s option, to the supplying of the Goods again or payment of the cost of having the Goods supplied again.
- The Seller’s liability for any claim in relation to this Agreement or the supply or performance of the Services (whether under statue, contract, tort, negligence or otherwise) will be limited to the amount of the fee paid by the Buyer to the Seller.
- The Seller will not be liable to the Buyer for any claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any direct or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation publicity, or use) of any remote abnormal of unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties, as a result of or in connection with the provision of the supply or performance of the Services and/or Goods.
- The Seller further takes no responsibility for any loss of data held by the Seller in accordance with this Agreement or the Sales Contract.
- The Buyer agrees that they waive any claim, future or present, that they may have or may arise against the Seller that is in any way connected directly or indirectly with the provision of Services or Supply of Goods.
- Notwithstanding any other provision of these Terms and Conditions, the Seller is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Buyer for:
- any increased costs or expenses;
- any loss of profit, revenue, business, contracts 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 whatsoever caused by the Seller’s failure to complete or delay in supply of the Goods.
- The Buyer further indemnifies the Seller from any costs or charges that in anyway either directly or indirectly relate to the supply of the Goods and/or provision of Services and further for any services that the Seller performs.
- Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricted or modifying any condition, warranty, guarantee, right or remedy implied by the law (including the Competition and Consumer Act 2011) and which by law cannot be excluded, restricted or modified.
- These terms and conditions supersede all terms and conditions previously issued by the Seller.
- The terms contained within this Agreement with respect to the return of Goods shall prevail over the terms documented on the Return Material Authorisation to the extent of any inconsistency.
- The parties acknowledge that this Agreement is intended as a contract for the supply of Goods and/or provision of Services and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
- This Agreement is personal to the Buyer and must not be assigned without the prior written consent of the Seller. Such consent must be reasonably given by the Seller and must not be unreasonable withheld.
- A communication required by this Agreement, by a party to another, must be in writing and may be given to them by being:
- Delivered personally;
- Posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting;
- Faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
- Sent by email to their email address, when it will be treated as received on that day.
- If any provision, or the application of any provision, of this Agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:
- this will not affect the validity and enforceability of the provision or part in other jurisdictions;
- the provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality; and
- the provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this Agreement.
- This Agreement supersedes all prior undertakings, arrangements and agreements and constitutes the entire agreement between the parties in relation to the subject matter of this Agreement and there are no conditions, warranties or other terms affecting the agreement between the parties other than those set out in this Agreement.
- Any waiver of a right under this Agreement must be in writing and signed by the party granting the waiver and will not operate as a waiver in relation to any subsequent matter.
- Any failure, delay, forbearance or indulgence by a party in an exercise, or partial exercise, of a right arising under this Agreement will not result in a waiver of that right or prejudice or restrict the rights of the party.
- Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
- Each party acknowledges that the party has received legal advice or has had the opportunity of obtaining legal advice in relation to this Agreement.
- This Agreement will be governed by the laws of New South Wales, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
- This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.