In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
“Agreement” means any agreement for the provision of goods or services by DDM LASER to the Purchaser;
“consumer” is as defined in the ACL and in determining if the Purchaser is a consumer, the determination is made if Purchaser is a consumer under the Agreement;
“goods” means goods supplied by DDM LASER to the Purchaser;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
“Purchaser” means the person, jointly and severally if more than one, acquiring goods or services from DDM LASER;
“services” means services supplied by DDM LASER to the Purchaser;
“DDM LASER” means DDM Laser Pty Ltd (ABN 78 616 488 772); and
“Terms” means these Terms and Conditions of Trade.
- Basis of Agreement
2.1 Unless otherwise agreed by DDM LASER in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Purchaser’s terms and conditions of purchase (if any).
2.2 Any quotation provided by DDM LASER to the Purchaser for the proposed supply of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only;
(c) only valid if in writing; and
(d) subject to exchange rate fluctuations.
2.3 The Terms may include additional terms in DDM LASER’s quotation, which are not inconsistent with the Terms.
2.4 An Agreement is accepted by DDM LASER when DDM LASER accepts, in writing or electronic means, an offer from the Purchaser or provides the Purchaser with the goods or services.
2.5 DDM LASER has absolute discretion to refuse to accept any offer.
2.6 The Purchaser must provide DDM LASER with its specific requirements, if any, in relation to the goods and services.
2.7 DDM LASER may vary or amend these Terms by written notice to the Purchaser at any time. Any variations or amendments will apply to orders placed after the notice date.
3.1 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 The price quoted does not include the cost of any installation, repair or maintenance services to be performed by DDM LASER that may be required from time to time.
3.3 If the Purchaser requests any variation to the Agreement, DDM LASER may increase the price to account for the variation.
3.4 Where there is any change in the costs incurred by DDM LASER in relation to goods or services, DDM LASER may vary its price to take account of any such change, by notifying the Purchaser.
- Payment for Machines
4.1 Unless otherwise agreed in writing:
(a) a deposit of 10% of the total price plus GST payable with official order (must be paid within 30 days of the date of DDM LASER’s invoice;)
(b) 80% of the total price payable plus GST is due when the goods arrive at the final shipping port prior to delivery to the Purchaser;
(c) the remaining 10% of the price plus GST is payable upon installation of the goods.
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 DDM LASER’s sole discretion immediately upon giving the Purchaser written notice.
4.4 The time for payment is of the essence.
- Payment Default
5.1 If the Purchaser defaults in payment by the due date of any amount payable to DDM LASER, then all money which would become payable by the Purchaser to DDM LASER at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Purchaser, and DDM LASER may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Purchaser interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;
(b) charge the Purchaser for, and the Purchaser must indemnify DDM LASER from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(c) cease or suspend supply of any further goods or services to the Purchaser;
(d) by written notice to the Purchaser, terminate any uncompleted contract with the Purchaser.
5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at DDM LASER’s option:
(a) where the Purchaser 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 Purchaser 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 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 Purchaser.
- Technical Documents
6.1 Catalogues, manuals and other technical documents are provided to the Purchaser as a reference only and do not form part of this Agreement.
6.2 The Purchaser must not provide any catalogue, manual or technical document to any third party without DDM LASER’s the express written consent.
- Safety Standards
7.1 For safety reasons, DDM LASER must install or mount any goods supplied by it to the Purchaser.
7.2 DDM LASER will ensure that there are sufficient persons available to install or mount the goods upon delivery and the Purchaser agrees to allow access to its property for the purpose of installing or mounting the goods.
- Passing of Property
8.1 Until DDM LASER receives full payment in cleared funds for all goods and services supplied by it to the Purchaser, as well as all other amounts owing to DDM LASER by the Purchaser:
(a) title and property in all goods remain vested in DDM LASER and do not pass to the Purchaser;
(b) the Purchaser must hold the goods as fiduciary bailee and agent for DDM LASER;
(c) the Purchaser must keep the goods insured against theft, breakage, fire flood and any other risks as reasonably required by DDM LASER;
(d) the Purchaser must keep the goods separate from its goods and maintain DDM LASER’s labelling and packaging;
(e) the Purchaser must hold the proceeds of sale of the goods on trust for DDM LASER in a separate account with a bank to whom the Purchaser has not given security however failure to do so will not affect the Purchaser’s obligation as trustee;
(f) in addition to its rights under the PPSA, DDM LASER 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 DDM LASER, and for this purpose the Purchaser irrevocably licences DDM LASER to enter such premises and also indemnifies DDM LASER from and against all costs, claims, demands or actions by any party arising from such action.
- Personal Property Securities Act
9.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
9.2 For the purposes of the PPSA:
(a) terms used in clause 9 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and DDM LASER has a Purchase Money Security Interest in all present and future goods supplied by DDM LASER to the Purchaser 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 Purchaser at any particular time; and
(d) the Purchaser must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by DDM LASER on the Personal Property Securities Register.
9.3 The security interest arising under this clause 9 attaches to the goods when the goods are collected or dispatched from DDM LASER’s premises and not at any later time.
9.4 Where permitted by the PPSA, the Purchaser 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.
9.5 DDM LASER and the Purchaser 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.
9.6 To the extent permitted by the PPSA, the Purchaser agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Purchaser or which place obligations on DDM LASER will apply only to the extent that they are mandatory or DDM LASER agrees to their application in writing; and
(b) where DDM LASER has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
9.7 The Purchaser must immediately upon DDM LASER’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 DDM LASER to be relevant to its security position such agreements and waivers (including as equivalent to those above) as DDM LASER may at any time require.
9.8 DDM LASER may allocate amounts received from the Purchaser in any manner DDM LASER determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by DDM LASER.
9.9 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.
- Risk and Insurance
10.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Purchaser immediately on the goods being delivered to the Purchaser or taken from DDM LASER’s premises.
10.2 The goods are sold to the Purchaser on the basis that the Purchaser has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
10.3 The Purchaser assumes all risk and liability for loss, damage or injury to persons or to property of the Purchaser, or third parties arising out of the use, installation or possession of any of the goods sold by DDM LASER, unless recoverable from DDM LASER on the failure of any statutory guarantee under the ACL.
- Performance of Agreement
11.1 Any period or date for delivery of goods or provision of services stated by DDM LASER is an estimate only and not a contractual commitment.
11.2 DDM LASER will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Purchaser or any third party for failure to meet any estimated date.
11.3 If DDM LASER cannot complete the services by any estimated date, it will complete the services within a reasonable time.
12.1 Subject to clause 12.6, DDM LASER will arrange for the delivery of the goods to the Purchaser.
12.2 The Purchaser is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Purchaser to the point of delivery.
12.3 DDM LASER may make part delivery of goods or provision of services and DDM LASER may invoice the Purchaser for the goods or services provided.
12.4 The Purchaser indemnifies DDM LASER against any loss or damage suffered by DDM LASER, its sub-contractors or employees as a result of delivery, except where the Purchaser is a consumer and DDM LASER has not used due care and skill.
12.5 If delivery is attempted, or the Purchaser is notified that DDM LASER is ready to effect delivery, and delivery is unable to be completed the Purchaser is deemed to have taken delivery of the goods. The Purchaser is liable for storage charges payable monthly on demand.
12.6 If agreed that the Purchaser will collect the goods:
(a) the Purchaser must collect the goods with 7 days of being advised they are ready;
(b) if the Purchaser does not collect the goods within this time, the Purchaser is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
13.1 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.
13.2 If the Purchaser is a consumer nothing in these Terms restricts, limits or modifies the Purchaser’s rights or remedies against DDM LASER for failure of a statutory guarantee under the ACL.
13.3 If the Purchaser on-supplies the goods to a consumer and:
(a) 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 DDM LASER’s liability to the Purchaser;
(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of DDM LASER’s liability to the Purchaser;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Purchaser or any third party.
13.4 If clause 13.2 or 13.3 do not apply, then other than as stated in the Terms or any written warranty statement DDM LASER is not liable to the Purchaser 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 Purchaser or any third party.
13.5 DDM LASER is not liable for any indirect or consequential losses or expenses suffered by the Purchaser 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, except to the extent of any liability imposed by the ACL.
13.6 The Purchaser acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by DDM LASER in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to DDM LASER 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 Purchaser.
13.7 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.
14.1 If DDM LASER is unable to deliver or provide the goods or services, then it may cancel the Purchaser’s order (even if it has been accepted) by written notice to the Purchaser.
14.2 No purported cancellation or suspension of an order or any part of it by the Purchaser is binding on DDM LASER once the order has been accepted.
- Shortages and Exchanges
15.1 Subject to clauses 15.2 and 15.4, DDM LASER will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Purchaser notifies DDM LASER with full details and description within 10 days of delivery otherwise the Purchaser is deemed to have accepted the goods.
15.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by DDM LASER, DDM LASER may, at its option, replace the goods, or refund the price of the goods.
15.3 Subject to clause 15.4, DDM LASER will not under any circumstances accept goods for return that:
(a) have been specifically produced, imported or acquired to fulfil the Agreement;
(b) are discontinued goods or no longer stocked by DDM LASER;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
15.4 If the Purchaser is a consumer, nothing in this clause 15 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
- Force Majeure
16.1 DDM LASER 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, DDM LASER may suspend or terminate the Agreement by written notice to the Purchaser.
17.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
17.2 DDM LASER’s failure to enforce any of these Terms shall not be construed as a waiver of any of DDM LASER’s rights.
17.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
17.4 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.