Kid Works Pty Ltd trading as Busy Body Kids ACN (617873300)
GENERAL CONDITIONS OF SALE
1. DEFINITIONS and interpretation
“The Company” means Kid Works Pty Ltd trading as Busy Body Kids ACN (617873300)
“The Purchaser” means an individual, a company or entity contracting with the Company for the supply of Goods, as listed in Schedule A and any Credit Application.
“Credit Application” means the application for credit completed by a Client and accepted by the Company.
“Default Event” means
a. The Client not paying any amount owing to the Company under these Terms and Conditions by the date that payment is due;
b. The Appointment of a liquidator, provisional liquidator, trustee, administrator, receiver, receiver and manager or similar officer to the Client, any and all of which is deemed to be in default of these Terms and Conditions;
c. The Client being in breach of these Terms and Conditions for ten (10) days after receiving written notice of such breach from the Company;
d. The Client or its servants agents or employees being guilty of any dishonesty or serious misconduct;
e. The Client, if a trustee, being replaced as trustee or another trustee being appointment in its place;
“Expenses” means the expenses incurred by the Company in providing the Goods to the Client and to be reimbursed by the Client to the Company.
“Goods” means all products and services sold or supplied by the Company to the Purchaser.
“Quoted Price” means the price as estimated and provided to the Purchaser prior to placing an order, as varied by the exchange rate variations.
“Quoted Exchange Rate” means the Exchange Rate as at the date of the Quoted Price and determined by the Reserve Bank of Australia.
“Guarantor” means the Guarantor, if any, identified in the Credit Application or these Terms and Conditions.
“Indemnity” includes defend, indemnify and hold harmless whether or not the obligation to indemnify arises out of a negligent or non-negligent acts or omissions of the Company, its servants or agents.
“GST” refers to goods and services tax under A New Tax System (Goods and Services) Act 1999 (“GST Act”) and the terms used have the meaning as defined in the GST Act.
“Schedule” means a schedule to these terms and conditions.
“Site” means the premises as advised by the Purchaser where the Goods are to be delivered, stored, utilized or sold.
“Terms and Conditions” means the terms and conditions as set out in this document. A party includes its officers, servants and agents. The words “include, “including” and “for example” are not to be construed as words of limitation; Terms defined in the Schedule apply when used in these terms and conditions.
2.2 This agreement supersedes all prior agreements and understandings and to the extent permissible by law any implied terms or representations are expressly excluded or negatived.
2.3 These terms and conditions cannot be waived or modified unless the Company explicitly waives them in writing and such waiver is signed by the Company or its authorised agent.
2.4 These Conditions of Sale shall be construed as not to infringe the provisions of any Act whether State or Federal, but if any such term or condition on its true interpretation does infringe any such provision or is otherwise unenforceable that term or condition shall be void and severable to such extent as may be necessary to ensure that it does not so infringe and so that it is not unenforceable.
3. SALE OF GOODS
3.1 The Company agreed to sell the Goods listed in Schedule A to the Purchaser. The Purchaser hereby agrees to purchase the Goods.
4. QUOTE FOR GOODS
4.1 Any quote provided by the Company for the sale of Goods to the Purchaser is valid for 30 days only from the date of such quote.
4.2 If there is any inconsistency between the Quoted Price provided by the Company and the Purchase Price set out in Schedule B then Schedule B shall apply to the extent of that inconsistency.
4.3 Prices and price lists are subject to change without notice. All goods will be invoiced at prices ruling at the date of despatch by the Company
5.1 The Company does not warrant the use and suitability of any Goods provided to the Purchaser.
5.2 It is the Purchaser’s responsibility to ensure that the Goods are used only by persons trained to accepted standards in operating and safety procedures and to provide for the conditions for their safe and proper use.
6.1 To the extent permitted by law, the Company makes no warranties or representations to the Purchaser except to the extent of this Agreement.
6.2 To the extent permitted by law, the Purchaser indemnifies the Company, its servants, agents and employees against all claims, demands, damages, liabilities, expenses and
losses arising from or resulting, either directly or indirectly from the provisions of the Goods by the Company to the Purchaser or the Purchaser’s use of the Goods.
6.3 The Company shall in no circumstances be liable for direct or indirect or consequential loss or damage by delay or any other cause whatsoever and howsoever caused.
6.4 The Purchaser indemnifies the Company for any loss or damage to the Goods while in use or in transit. This includes if any of the Goods are stolen or lost, or if the damage occurs due to the negligence, omission or misconduct of a third party.
6.5 Without prejudice to the foregoing, if the Company is found liable any such breach, shall be limited, at its sole discretion, to:
6.5.1 The replacement of the Goods or the supply of equivalent Goods or
6.5.2 The repair of the Goods.
6.6 The Company will not be liable for any loss, injury or damage (including loss of profit, consequential and economic loss) sustained by the Purchaser or any other person (whether to person or property and whether directly or indirectly) from the sale or use of any product, goods or services. The Purchaser will indemnify the Company and keep the Company indemnified against any claim, demand or proceedings made or brought arising from such loss, injury or damage;
6.7 Nothing in this agreement purports to modify or exclude any liability, which may not be excluded or modified under the Competition and Consumer Act 2010 (Cth), or such Act as may supersede it.
7.1 All Goods delivered remain the property of the Company until all monies owning have been paid in full. Where credit is extended to the Purchaser, the following provisions shall apply:
7.1.1 Until the Goods, the subject of the contract, are paid for in full, the ownership shall remain with the Company, but the risk shall pass to the Purchaser.
7.1.2 Until the Goods are paid for in full, the relationship between the Company and the Purchaser shall be fiduciary, and the Purchaser shall hold the Goods as bailee for the Company. The Purchaser shall store the Company’s Goods separately from its own.
7.1.3 Subject to the manufacturer’s consent and licence conditions, if the Company consents to the Purchaser selling or disposing of the Goods in the ordinary course of business as agents for the Company, the proceeds shall be held in trust for and on behalf of the Company. In the event that the Company consents to the disposal of the Goods, the moneys resulting from the sale are to be specifically earmarked and placed into a separate account until payment is made in full to the Company under the contract.
7.1.4 If the Purchaser defaulting on payment of the Goods, or committing an act of bankruptcy or if a receiver or manager is appointed, or the Purchaser goes into liquidation, and without prejudice to any other rights of the Company , the Company may enter the premises of the Purchaser and retake possession of the Goods.
7.1.5 The Company may be entitled to resell the Goods after taking possession of them and to recover from the Purchaser any amount by which the resale price is less than the price agreed to be paid by the Purchaser, together with all costs and expenses incurred by the Company as a result of the Purchaser’s default.
The design and specification of the Goods is subject to alteration without notice by the Company. The Company reserves the right to fulfil the orders with Goods of the altered design, or by Goods of equivalent performance and quality.
10. PRICES, DUTY & TAX
10.1 During the period the Quoted Price is valid the prices are firm except where the costs to the Company have increased as a result of exchange rate variations. Unless otherwise stated in writing, all prices quoted are net, and exclude GST, which if applicable will be added to the Purchaser’s account. GST will be charged at the current GST rate.
11. EXCHANGE RATE VARIATIONS
11.1 Unless specified in Schedule A, all prices are quoted in Australian dollars.
11.2 Where the costs to the Company of Goods, services or levies have increased since the date of Quoted Price as a result of exchange rate variation, then the prices to the
Purchaser shall be increased by an amount calculated as follows: Quoted Price x 0.7 x Quoted Exchange Rate – Quoted Price x 0.7 Exchange Rate at the Date of Import.
12. TERMS OF PAYMENT
12.1 The Client will pay the Purchase Price to the Company for the Goods provided from time to time as agreed between the parties and at the rate and in the manner as specified in Schedule B and these Terms and Conditions.
12.2 The Client will pay the Expenses to the company in addition to the Purchase Price as agreed between the parties and as specified in Schedule B to these Terms and Conditions.
12.3 If the Purchaser does not pay the invoiced amount within 14 days of receipt of invoice, the Purchaser is liable to pay:
12.3.1 10% per annum interest, calculated daily until payment is made; and
12.3.2 all debt collection and legal costs and expenses (on a client-solicitor basis) incurred by the Company to recover or attempt to recover such overdue payment from the Client.
12.4 If an account has been established between the Purchaser and the Company and unless otherwise stated, the terms of payment are full payment within 14 days from date of delivery, notwithstanding that the Goods may not have been installed or commissioned by such date.
12.5 If no account has been established by the Purchaser with the Company then payment prior to or upon delivery of the Goods is required. In the event of non-compliance with the Company’s payment terms, the Company reserves the right to suspend deliveries and/or cancel contract and/or apply an accounting fee at the rate of 2.5% per month pro rata on all outstanding moneys from the due date.
12.6 The Company reserves the right to vary the terms of payment and total value of credit allowed at any time and to require payment in cash in full prior to delivery should the credit worthiness of a Purchaser, at any time become, in the Company opinion, unsatisfactory.
13. SECURITY FOR PAYMENT
13.1 As security for payment of all monies owed which are payable by the Client or which may become payable by the Client to the Company, the Client agrees to charge all of its interest in all present and after acquired property, by way of a charge over any personal property owned by the Client or any Guarantor under the Credit Application or these Terms and Conditions. If a demand is made by the Company on the Client the Client and/or the Guarantor will immediately execute a charge or other instruments of security as requested by the Company. The Client or any Guarantor will, pass such resolutions and must sign, seal and deliver, execute, perfect and give to the Company all such documents in order to enable the registration of a charge or other security.
13.2 The Client must pay or reimburse the Company for all costs and expenses associated with the preparation, execution, stamping, registration and enforcement of any security documentation. The Client and or the Guarantors authorises and consents to the Company taking all action necessary to give effect to these provisions.
13.3 The Equipment remains the property of the Company until the Client has paid all sums owing under this or any other Agreement.
13.4 Until full payment has been received by the Company the Client must hold the Equipment as fiduciary bailee for the Company and also separately store the Equipment so that they are clearly shown as being the Company’s property;
13.5 This document creates a purchase money security interest in the Goods and Equipment. The Client must sign all documents and take all steps which the Company may reasonably require in connection with the registration and perfection of this security.
13.6 On the Company taking possession of the Goods, the Client is not entitled to redeem them and the Company will be entitled to retain the Goods and deal with them as the Company may think fit. The Company will credit an amount equal to the purchase price of the Goods (less all expenses of enforcement of this security interest) against the moneys owing by the Client.
13.7 For the purposes of the Personal Property Securities act 2009 (Cth) (‘the Act”) and to the extent permitted by law:
13.7.1 Sections 95, 128, 129, 130, 132(3)(d), 132(4) and 143 of the Act have no application to these arrangements; and
13.7.2 The Company is not required to give notice under section 135 of the Act.
13.8.1 The Client acknowledges and agrees that these Terms and Conditions give the Company a “security interest” as defined by the Personal Property Securities Act 2010 as amended or replaced from time to time.
13.8.2 The Client acknowledges and agrees that these Terms and Conditions give the Company a right to register a security interest in the property of the Client.
13.8.3 The Client will immediately upon request:
18.104.22.168 Provide such information and documents as required (including personal information); and
22.214.171.124 Execute and sign any documents or form required from time to time to formalise or affirm the security interest or enable it to be registered or once registered to enable such registration to be renewed.
14. OWNERSHIP OF GOODS
14.1 The Client acknowledges that the Company retains ownership in the Goods until the Company has been paid in full by the Client for the Goods.
14.2 The Client may make no alterations or repairs to the Goods until the Company has been paid in full by the Client for the Goods.
14.3 Unless agreed by the Company in writing, the Client will not, in any promotional material use the names “Busy Body Kids” or the name of any employee or contractor of it. The Client will ensure that its clients and customers comply with this clause as if they were a party to this Agreement. The Client shall fully indemnify the Company against any loss, claims or liability incurred by the Company or any third party either directly or indirectly as a result of any breach of this Clause.
15. DELIVERY SCHEDULE
15.1 Any delivery or completion times quoted are estimates given and may be extended. The Company shall not be liable for any loss, injury, or damage caused by or consequent upon any delay in delivery or non-delivery of materials or parts for any cause whatsoever.
15.4 The Company reserves the right to deliver and invoice any item or items comprising the whole or part of an Order prior to any delivery or completion time quoted.
15.5 If the Purchaser fails or refuses to take delivery of the Goods, then in addition to all other rights and remedies of the Company, the Purchaser shall be liable for all loss and damage (including transit, storage, consequential loss and damage) suffered or incurred by the Company as a result thereof and the Company, at its discretion, may charge a restocking fee.
16. DELIVERY COSTS AND RISK
16.1 The Delivery Goods will be delivered only to the delivery address. Acceptance of the goods by any agent or employee of the Purchaser of the delivery address shall be sufficient for the Company to leave the goods at the delivery address.
16.2 The Goods, at all times, are at the risk of the Purchaser and not the Company and the Company shall not be responsible in tort or contract or otherwise for any loss or damage to or deterioration of Goods or mis-delivery or failure of delivery or delay in delivery of Goods, whether arising through negligence of the Company or otherwise.
16.3 Insurance will not be arranged by the Company. The Purchaser shall insure, for the benefit of the Company, against loss or damage of the Goods in transit and prior to payment for the benefit of the Company.
16.6 Where the Goods are delivered by the Company and are paid for, the Goods are still at the Purchaser’s risk, notwithstanding that the Company may be required to install, set up or perform any service in connection with the Goods.
16.7 The Purchaser is responsible for all freight and delivery costs. Any claims for errors or shortages must be notified to the Company within 3 days of receipt of the Goods.
18.1 If the Purchaser fails to take delivery of the Goods when they are ready for delivery, the Company may at its sole discretion, either store them itself or have them stored by third parties.
18.2 The cost of storage and any additional transportation charges will be born by the Purchaser.
18.3 The Company will not be liable to any person or persons for any loss or damage to the Goods or part thereof or for any death or injury caused to any person arising our of the storage of the Goods and whether caused wholly or partly directly or indirectly by such storage and whether such loss, damage, death or injury arises from the negligence of the Company or otherwise.
19.1 Termination by the Company
19.1.1 The Company may, in its absolute discretion and without notice to the Purchaser, terminate the provision of the Goods to the Client:
126.96.36.199 Upon the occurrence of a Default Event;
188.8.131.52 if there is a ‘Change of Control’ in the Purchaser, where a ‘Change of Control’ means, if a corporation, that there is a proposal that a person or group of persons cease to have voting power (as defined in the Corporations Act 2001) (Cth)) of at least 50% in the company or a parent or holding company; or
184.108.40.206 upon giving the Client 30 days notice in writing.
19.1.2 In the event of a Default Event occurring, the Company may declare the entire. In the event of such termination, the Company may enter into the premises where the Equipment is located and remove same. The Client hereby authorizes the Company to enter any premises to accomplish such repossession. The Purchaser will pay all costs and expenses, including legal fees, incurred in execution of this section.
19.2 The Purchaser acknowledges that the Company has the right to enter any Site and take possession of and remove any of its Goods, documents, items, tools and equipment at any time without notice to the Client where there has been a breach of these Terms and Conditions or a default in regard to payment of the Fee, the Expenses or any other moneys owed to the Company by the Purchaser. The Company shall not be liable for any loss of or damage to the Purchaser’s property arising in the course of recovering possession of the Goods.
19.3 Rights Remain
Termination of this agreement to provide Services will be without prejudice to any claim which the Company may have in law or equity arising from any breach of these Terms and Conditions by the Client.
20.1 Where any legislation is applicable or where the Company is otherwise found to be in breach of its obligations under this agreement or negligent, the Company’s liability for any loss of or damage to or in connection with the Goods is expressly limited as set out in Clause 3.
20.2 Subject to clause 3 the Purchaser agrees regardless of the act or negligence on the part of the Company, its employees, servants or agents or any subcontractors of the Company to release hold harmless and indemnify the Company from and against all liabilities claims damages losses costs and expenses of any nature howsoever occurring including but not limited to wilful misconduct which may accrue against or be suffered by the Company arising out of or in any way connected with the provision of the Goods.
21.1 Force Majure
The Company shall not be liable for any failure to fulfil or any delay in fulfilling any obligation arising from the Agreement if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire, or explosion, and government action or any other cause beyond the reasonable control of the Company and not a consequence of the Company’s negligence.
21.2.1 Any notice to be given to the Company or Purchaser under these Terms and Conditions must be in writing and must be sent by post, facsimile or email to the address of that party shown in the Schedule.
21.2.2 Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
These terms and conditions are governed and must be interpreted in accordance with the laws of New South Wales. The Purchaser unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
21.4 Where there is more than one Purchaser then the liability of each shall be joint and several.
21.5 The rights and remedies provided in these terms and conditions will not affect any other rights or remedies available to the Company.