BIKE KINGDOM PTY LTD (ACN: 621 524 196) – TERMS AND CONDITIONS OF TRADE
1.1 “Wholesaler” shall mean Bike Kingdom Pty Ltd and its successors and assigns.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Wholesaler to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Wholesaler to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Wholesaler and the Customer subject to clause 4 of this contract.
2.1 Any instructions received by the Wholesaler from the Customer for the supply of Goods and/or the Customer’s acceptance Goods supplied by the Wholesaler shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customer’s shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Wholesaler.
2.4 None of the Wholesaler’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Wholesaler in writing nor is the Wholesaler bound by any such unauthorised statements.
2.5 The Customer undertakes to give the Wholesaler not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).
3.1 The Goods and services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Wholesaler to the Customer.
3. Price And Payment
4.1 At the Wholesaler’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Wholesaler to the Customer in respect of Goods supplied; or
(b) The Price of the Goods shall (subject to clause 4.2) be the Wholesaler’s quoted Price which shall be binding upon the Wholesaler provided that the Customer shall accept in writing the Wholesaler’s quotation within thirty (30) days.
4.2 At the Wholesaler’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.3 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be as indicated on the statement.
4.4 The Wholesaler may withhold delivery of the Goods until the Customer has paid for them, in which event payment shall be made before the delivery date.
4.5 At the Wholesaler’s sole discretion, payment for approved Customer’s shall be due on thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.6 Payment will be made by cash on delivery, or by cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Wholesaler.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Wholesaler.
4. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Wholesaler’s address.
5.2 The failure of the Wholesaler to deliver shall not entitle either party to treat this contract as repudiated.
5.3 The Wholesaler shall not be liable for any loss or damage whatever due to failure by the Wholesaler to deliver the Goods (or any of them) promptly or at all.
6.1 If the Wholesaler retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If the Goods are delivered by a freight company nominated by the customer, all risk for the Goods passes to the Customer on dispatch from the Wholesaler.
6.3 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Wholesaler is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Wholesaler is sufficient evidence of the Wholesaler’s rights to receive the insurance proceeds without the need for any person dealing with the Wholesaler to make further enquiries.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Wholesaler and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Wholesaler shall not be bound by nor responsible for any term, condition, representation or warranty other than any warranty (if any) given by the particular Manufacturer of the Goods which warranty (if any) shall be personal to the Customer and shall not be transferable to any subsequent Customer.
8.1 The Customer shall inspect the Goods on delivery and shall within forty-eight (48) hours of delivery notify the Wholesaler of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Wholesaler an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods, which the Wholesaler has agreed in writing that the Customer is entitled to reject, the Wholesaler’s liability is limited to either (at the Wholesaler’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Customer has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date;
(c) the Wholesaler will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
9.1 For Goods not manufactured by the Wholesaler, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Wholesaler shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10. Australian Consumer Law, the Competition and Consumer Act 2010 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Default & Consequences Of Default
11.1 Interest on overdue invoices shall accrue from the date when payment becomes due compounding daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
11.2 If the Client defaults in payment of any invoice when due then;
(a) the Client shall indemnify the Wholesaler from and against all the Wholesaler’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection; and
(b) the Wholesaler shall be entitled to debit the Client’s credit card for payment of any outstanding invoice (plus any administration fees that are applicable to such credit card transactions).
11.3 Without prejudice to any other remedies the Wholesaler may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Wholesaler may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Wholesaler will not be liable to the Customer for any loss or damage the Customer suffers because the Wholesaler exercised its rights under this clause.
11.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of up to 10% of the amount overdue may be levied for administration fees which sum shall become immediately due and payable.
11.5 In the event that:
(a) any money payable to the Wholesaler becomes overdue, or in the Wholesaler’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer;
then without prejudice to the Wholesaler’s other remedies at law
(i) the Wholesaler shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Wholesaler shall, whether or not due for payment, immediately become payable.
12.1 It is the intention of the Wholesaler and agreed by the Customer that property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Wholesaler in respect of all contracts between the Wholesaler and the Customer, and that the Goods shall be kept separate until the Wholesaler shall have received payment and all other obligations of the Customer are met.
12.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Wholesaler to the Customer the Wholesaler may give notice in writing to the Customer to return the Goods or any of them to the Wholesaler. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
(b) If the Customer fails to return the Goods to the Wholesaler then the Wholesaler or the Wholesaler’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) The Customer is only a bailee of the Goods and until such time as the Wholesaler has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Wholesaler.
(d) The Customer shall not deal with the money of the Wholesaler in any way which may be adverse to the Wholesaler.
(e) Receipt by the Wholesaler of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Wholesaler’s ownership of rights in respect of the Goods shall continue.
(f) The Customer shall not grant and security interest or charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Wholesaler.
(g) The Wholesaler may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Wholesaler arising out of these terms and conditions, and the Wholesaler may take any lawful steps to require payment of the amounts due and the Price.
(h) The Wholesaler can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
(i) If the Customer has the Wholesaler’s authority to convert the Goods into other products and if the goods are so converted, the parties agree that the Wholesaler will be the owner of the end products.
(j) Should any doubt exist as to the identification of Goods a declaration by the Wholesaler as to those Goods supplied pursuant to these Terms and Conditions of Trade will be sufficient evidence as to the ownership of the Goods.
13. Security And Charge
13.1 Notwithstanding anything to the contrary contained herein or any other rights which the Wholesaler may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to grant security interest over mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Wholesaler or the Wholesaler’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Wholesaler (or the Wholesaler’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Wholesaler elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Wholesaler from and against all the Wholesaler’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [13.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Wholesaler or the Wholesaler’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Wholesaler and/or the Wholesaler’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Wholesaler and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Wholesaler and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Wholesaler’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
14.1 The Wholesaler may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Wholesaler shall not be liable for any loss or damage whatever arising from such cancellation.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for the Wholesaler to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Wholesaler.
15.2 The Customer and/or the Guarantor/s agree that the Wholesaler may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Trading account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(d) To assess the credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to the Wholesaler being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that Personal Data provided may be used and retained by the Wholesaler for the following purposes and for other purposes as shall be agreed between the Customer and Wholesaler or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the Wholesaler, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
15.5 The Wholesaler may give, information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16. Unpaid Wholesaler’s Rights To Dispose Of Goods
16.1 In the event that:
(a) the Wholesaler retains possession or control of the Goods; and
(b) payment of the Price is due to the Wholesaler; and
(c) the Wholesaler has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) the Wholesaler has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Customer or has remained with the Wholesaler, the Wholesaler may dispose of the Goods and may claim from the Customer the loss to the Wholesaler on such disposal.
17. Lien & Stoppage in Transit
17.1 Where the Wholesaler has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Wholesaler shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Wholesaler is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Wholesaler shall continue despite the commencement of proceedings or judgement for the price having been obtained.
18. “Personal Property Securities Act 2009 (PPSA)
18.1 This agreement is a security agreement.
18.2 The interest of the Wholesaler in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.
18.3 The Customer consents to the Wholesaler registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Wholesaler to facilitate registration.
18.4 Until such time as title in the Goods has passed to the Customer as contemplated by clause 12 of this agreement, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the Goods in the ordinary course of business.
18.5 The Customer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
18.6 The Wholesaler and Customer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed t unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Wholesaler and Customer agree that the Wholesaler will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
18.7 Unless the Goods are used predominantly for personal, domestic or household purposes, the Wholesaler and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Wholesaler’s security interest in the Goods or of this agreement:
(a) any requirement for the Wholesaler to give the Customer a notice of removal of accession;
(b) any requirement for the Wholesaler to give the Customer a notice of the Wholesaler’s proposed disposal of the goods;
(c) any requirement for the Wholesaler to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
(d) any requirement for the Wholesaler to give the Customer a statement of account if the Wholesaler does not dispose of the Goods;
(e) any right the Customer has to redeem the Goods before the Wholesaler exercises a right of disposal; and
(f) any right the Customer has to reinstate this agreement before the Wholesaler exercises a right of disposal of the Goods
18.8 Expressions defined in the PPSA have the same meaning when used in this agreement.”
No delay or omission to exercise any right, power or remedy accruing to the Wholesaler upon any continuing breach or default under this agreement impairs any right, power or remedy of the Wholesaler and it will not be construed to be a waiver of or acquiescence in any continuing breach or default or in any similar breach or default occurring subsequently; and no waiver of any single breach or default will be deemed a waiver of any earlier or later breach or default. Any waiver, permit, consent or approval of any kind or
character of any breach or default under this agreement or any waiver of any provision or condition of this agreement must be in writing and will be effective only to the extent set out in the written waiver. All remedies either under this agreement or by law or otherwise afforded to the Wholesaler are cumulative and not alternative.”
20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods supplied by the Wholesaler are subject to the laws of Queensland in the jurisdiction of the Courts of B and the Wholesaler takes no responsibility for changes in the law which affect the Goods supplied.
20.3 The Wholesaler shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Wholesaler of these terms and conditions.
20.4 In the event of any breach of this contract by the Wholesaler the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Wholesaler exceed the Price of the Goods and/or Services.
20.5 The Customer shall not set off against the Price amounts due from the Wholesaler.
20.6 The Wholesaler may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.7 The Wholesaler reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Wholesaler notifies the Customer of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.