Terms and Conditions
Kent Way International Pty Ltd – Terms & Conditions of Trade
1.1 “Seller” means Kent Way International Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Kent Way International Pty Ltd.
1.2 “Buyer” means the person/s or any person acting on behalf of and with the authority of the Buyer requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- (a) if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
- (b) if the Buyer is a part of a Trust, shall be bound in their capacity as a trustee; and
- (c) includes the Buyer’s executors, administrators, successors and permitted assigns.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Buyer and the Seller.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Seller’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.4 Goods are supplied by the Seller only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.6 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.7 The Buyer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability.
3. Errors and Omissions
3.1 The Buyer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- (a) resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this contract; and/or
- (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Services.
4. Change in Control
4.1 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
5. Online Ordering
5.1 The Buyer acknowledges and agrees that:
- (a) the Seller does not guarantee the website’s performance;
- (b) display on the website does not guarantee the availability of any particular Goods, therefore all orders placed through the website shall be subject to confirmation of acceptance by the Seller;
- (c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
- (d) there are inherent hazards in electronic distribution, and as such the Seller cannot warrant against delays or errors in transmitting data between the Buyer and the Seller including orders, and you agree that to the maximum extent permitted by law, the Seller will not be liable for any losses which the Buyer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
- (e) when making a transaction through the website, the Buyer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Buyer’s information cannot be read by or altered by outside influences;
- (f) if the Buyer is not the cardholder for any credit card being used to pay for the Goods, the Seller shall be entitled to reasonably assume that the Buyer has received permission from the cardholder for use of the credit card for the transaction.
6. Price and Payment
6.1 At the Seller’s sole discretion, the Price shall be either:
- (a) as indicated on any invoice provided by the Seller to the Buyer; or
- (b) the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
- (c) the Seller’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days; and
- (d) the Price may be subject to change without notice.
- (a) on delivery of the Goods;
- (b) for certain approved Buyers, thirty (30) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices;
- (c) the date specified on any invoice or other form as being the date for payment; or
- (d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by the Seller.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- (a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at the Seller’s address; or
- (b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
- (a) such discrepancy in quantity shall not exceed five percent (5%); and
- (b) the Price shall be adjusted pro rata to the discrepancy.
8.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8.3 If the Buyer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Buyer’s sole risk.
9.1 The Seller and the Buyer agree that ownership of the Goods shall not pass until:
- (a) the Buyer has paid the Seller all amounts owing to the Seller; and
- (b) the Buyer has met all of its other obligations to the Seller.
- (a) the Buyer is only a bailee of the Goods and must return the Goods to the Seller on request.
- (b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- (c) the Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
- (d) the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
- (e) the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
- (f) the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
- (g) the Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
- (h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Buyer to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
10.3 The Buyer undertakes to:
- (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
- (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- (ii) register any other document required to be registered by the PPSA; or
- (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
- (b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- (c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
- (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
- (e) 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.
11. Security and Charge
11.1 In consideration of the Seller agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
11.3 The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Buyer’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Seller to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Buyer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Buyer has paid for the Goods.
12.7 If the Buyer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
- (a) limited to the value of any express warranty or warranty card provided to the Buyer by the Seller at the Seller’s sole discretion;
- (b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
- (c) otherwise negated absolutely.
- (a) the Buyer has complied with the provisions of clause 12.1; and
- (b) the Seller has agreed that the Goods are defective; and
- (c) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant); and
- (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
- (a) the Buyer failing to properly maintain or store any Goods;
- (b) the Buyer using the Goods for any purpose other than that for which they were designed;
- (c) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- (d) the Buyer failing to follow any instructions or guidelines provided by the Seller;
- (e) fair wear and tear, any accident, or act of God.
13. Intellectual Property
13.1 Where the Seller has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of the Seller. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller.
13.2 The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Buyer.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies the Seller may have under this contract, if a Buyer has made payment to the Seller, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this contract.
14.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;
- (b) the Buyer has exceeded any applicable credit limit provided by the Seller;
- (c) the Buyer 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
- (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
15. Cancellation15.1 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Buyer. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
16. Privacy Act 1988
16.1 The Buyer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Buyer in relation to credit provided by the Seller.
16.2 The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers and with related body corporates for the following purposes:
- (a) to assess an application by the Buyer; and/or
- (b) to notify other credit providers of a default by the Buyer; and/or
- (c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
- (d) to assess the creditworthiness of the Buyer including the Buyer’s repayment history in the preceding two (2) years.
- (a) the provision of Goods; and/or
- (b) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods; and/or
- (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
- (d) enabling the collection of amounts outstanding in relation to the Goods.
- (a) to obtain a consumer credit report;
- (b) allow the CRB to create or maintain a credit information file about the Buyer including credit history.
- (a) personal information as outlined in 16.1 above;
- (b) name of the credit provider and that the Seller is a current credit provider to the Buyer;
- (c) whether the credit provider is a licensee;
- (d) type of consumer credit;
- (e) details concerning the Buyer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Buyer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- (g) information that, in the opinion of the Seller, the Buyer has committed a serious credit infringement;
- (h) advice that the amount of the Buyer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
- (a) a copy of the information about the Buyer retained by the Seller and the right to request that the Seller correct any incorrect information; and
- (b) that the Seller does not disclose any personal information about the Buyer for the purpose of direct marketing.
17. Service of Notices
17.1 Any written notice given under this contract shall be deemed to have been given and received:
- (a) by handing the notice to the other party, in person;
- (b) by leaving it at the address of the other party as stated in this contract;
- (c) by sending it by registered post to the address of the other party as stated in this contract;
- (d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
- (e) if sent by email to the other party’s last known email address.
18.1 If the Buyer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Buyer covenants with the Seller as follows:
- (a) the contract extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund;
- (b) the Buyer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust or the trust fund. The Buyer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
- (c) The Buyer will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
- (i) the removal, replacement or retirement of the Buyer as trustee of the Trust;
- (ii) any alteration to or variation of the terms of the Trust;
- (iii) any advancement or distribution of capital of the Trust; or
- (iv) any resettlement of the trust property.
19.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts of South Australia.
19.3 Subject to clause 12, the Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
19.4 The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without the Buyer’s consent.
19.5 The Buyer cannot licence or assign without the written approval of the Seller.
19.6 The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Buyer agrees and understands that they have no authority to give any instruction to any of the Seller’s sub- contractors without the authority of the Seller.
19.7 The Buyer agrees that the Seller may amend these terms and conditions by notifying the Buyer in writing. These changes shall be deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at such time as the Buyer makes a further request for the Seller to provide Goods to the Buyer.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
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