ACCEPTANCE OF TERMS AND CONDITIONS OF TRADE BY BUYER
The Buyer agrees to trade with KVM AUSTRALIA PTY LTD (ACN 086 417 405) (“KVM”) in accordance with the Terms and Conditions of Trade set out below ("Trade Conditions") and must observe and perform the Trade Conditions. The Buyer agrees that the Trade Conditions will apply to each and every order for Goods placed by the Buyer and accepted by KVM, unless otherwise agreed in writing by KVM.
TERMS AND CONDITIONS OF TRADE
for KVM AUSTRALIA PTY LTD (ACN 086 417 405) (“KVM”)
In these conditions:
"Address" means the address given by the Buyer to KVM to which the Goods are to be delivered.
“Buyer" means the Person with whom KVM contracts to provide Goods.
"Charges" means charges set by KVM and payable by the Buyer to KVM in consideration of Goods provided to the Buyer, including but not limited to costs caused by delays that are not the fault of KVM, taxes, fines and duties including customs and excise duties payable by KVM on the Goods, any goods and services tax, all other costs and expenses incurred in the supply of the Goods including demurrage at the rate charged by the railway or shipping authority.
“Credit Contract” means an agreement by KVM to extend credit to the Buyer, pursuant to a credit application made by the Buyer to KVM, and accepted by KVM in writing (if any).
“Credit” means Goods supplied by KVM to the Buyer under a Credit Contract.
"Damage" means any loss of, damage to, deterioration of, or misdelivery of, or non-delivery of, or delay in Delivery of the Goods and includes consequential economic or ancillary loss damage, expense or liability.
“Default” occurs if the Buyer commits an act of bankruptcy or is declared bankrupt, or a petition winding up is presented, or the Buyer is placed in receivership or an administrator is appointed to the Buyer, or the Buyer enters into any arrangement, composition or compromise (formal or informal) with its creditors, where a cheque payable to KVM is dishonoured, where there is any Unpaid Balance, if the Buyer is otherwise in breach of any of the terms of this Contract, or if the Buyer ceases to trade or carry on business in the usual manner.
“Delivery” has the meaning in clause 6(c) of this Contract.
“Due Date” means:
- if there is a valid Credit Contract between KVM and the Buyer, the due date for payment of accounts rendered to the Buyer specified in the Credit Contract; or
- if there is no valid Credit Contract between KVM and the Buyer, prior to the release / Delivery of the Goods.
The Due Date applies regardless of whether there is a delay in the provision of the Goods or a dispute as to the Goods.
"Goods" means the goods or services ordered by the Buyer, its officers, employees and agents.
"Person" includes a natural person, firm, corporation, government authority or other body or organisation.
“Price” has the meaning in clause 3(a) of this Contract.
"Receiver" means the Person (and their officers, employees and agents) to whom the Buyer consigns, sends or directs the Goods. If the Buyer directs the Goods to themselves, then the Buyer is the Receiver.
“Unpaid Balance” means any part of the Price remaining outstanding after the Due Date.
2. BUYER ACCEPTS TERMS
- The Buyer accepts the terms of this Contract for itself and the Receiver and any other Person on whose behalf the Buyer is acting.
- The terms of this Contract apply to all agreements for the supply of Goods by KVM to the Buyer.
- To the extent permitted by law, any terms, conditions or warranties not contained in this Contract are not binding upon KVM unless expressly accepted by KVM in writing.
- The price for the Goods will be as quoted by KVM to the Buyer in writing (exclusive of delivery costs), or, if no written quote is provided, then pursuant to KVM’s standard Charges applying at the time (“the Price”).
- KVM’s standard Charges are subject to change without notice.
- The Price for the Goods may include some or all of the Charges.
- KVM may withdraw any quotation before it is accepted, and in any event any quotation provided will lapse 14 days after it is given without notice.
- The Price and the Charges are inclusive of GST and other taxes which are payable by the Buyer, unless otherwise stated.
- Purchase orders will be accepted by KVM when placed by telephone, facsimile or electronic mail provided that order number references are supplied. Verbal orders will be accepted; however responsibility for the accuracy of these orders remains with the Buyer.
- Once accepted by KVM, each purchase order will be deemed to be a binding contract to purchase the ordered Goods, on the terms of this Contract.
- A minimum Price of $50 is applicable is all purchase orders placed by the Buyer. If the Buyer orders Goods with a Price of less than $50 in any purchase order, the Buyer will pay an additional handling fee of $50 on that purchase order.
- The Buyer must make payment of the Price to KVM by the Due Date by way of cash, credit card, cheque or direct deposit into KVM’s bank account without deduction for any reason.
- If the Buyer makes payment by credit card, the Buyer must pay KVM an additional amount equal to any fees or charges payable by KVM by reason of the payment being made by credit card.
- At any time there is an Unpaid Balance then without prejudice to KVM’s other rights and remedies available to it:
- KVM may in its discretion exercise any of its remedies in clause 12 of this Contract;
- The Buyer must pay KVM interest at the rate of 10% per annum (or such other rate as KVM nominates by notice to the Buyer) calculated on a daily basis on any Unpaid Balance from the Due Date until the Unpaid Balance is paid in full. Payments received shall be applied towards interest first and then towards the Unpaid Balance; and
- The Buyer shall be responsible for all costs incurred by KVM in recovering any Unpaid Balance including debt collection agency fees, administration charges and legal costs on a full indemnity basis and any costs incidental to the enforcement or attempted enforcement of KVM rights, remedies and powers under this Contract;
- KVM may withhold supply of any Goods ordered by the Buyer; and
- KVM may terminate any Credit Contract between the KVM and the Buyer.
- Notwithstanding anything else in this Contract, KVM may request that part or all of the Price be paid by the Buyer prior to delivery of the Goods, and KVM will not be obliged to procure the Goods or make delivery of the Goods until the Price (or the requested part of the Price) has been paid by the Buyer.
- If the Goods are requested to be delivered to the Address then KVM must deliver the Goods to the Address. The Buyer must pay all costs associated with delivering the Goods to the Address.
- KVM will use its best endeavours to deliver the Goods according to schedule but shall not be responsible for delivery delays or for failure to deliver all or any part of the Goods.
- Delivery shall be deemed to occur in any of the following circumstances:
- If KVM delivers the Goods to the Address and obtains from any person a receipt or signed delivery docket for the Goods.
- If KVM delivers the Goods to the Address and the Address is unattended, by leaving the Goods at the Address.
- When the Goods are delivered to the Buyer’s carrier or the carrier nominated by KVM if the buyer does not specify their own carrier.
- If the Buyer collects the Goods from KVM.
- If the Address is unattended, KVM may store and redeliver the Goods, and the Buyer shall indemnify KVM for all expenses incurred by storage and attempted or actual redelivery.
Until the Price for the Goods has been paid by the Buyer in full:
- Title to, and ownership of, the Goods shall remain at all times with KVM;
- The Buyer will be bailee of the Goods for KVM and shall store them separately from its own goods or those of any other person and shall store them in a manner enabling them to be readily identifiable as goods of KVM;
- The Buyer must not sell or dispose of any of the Goods or any interest in the Goods without the prior consent of KVM.Should the Buyer sell or dispose of any of the Goods, with or without KVM consent, the proceeds of the resale belong to KVM and the Buyer holds any proceeds it receives in trust for KVM.
- If any of the Goods become intermingled or mixed or become part of another product or if the Buyer makes a new product from any of the Goods, ownership of the other product or new product immediately passes to KVM as if they were goods that KVM has supplied.
- The Buyer indemnifies KVM against claims by any party with an interest in the Goods.
Risk in the Goods passes to the Buyer upon either Delivery of the Goods or at the time the Buyer pays for the Goods, whichever date is the earlier. It is the Buyer’s responsibility to insure the Goods from the earlier of Delivery of the Goods or payment of the Goods.
9. CLAIM FOR DAMAGE
- KVM are discharged from all liability in respect of any Damage and no claim for Damage will be allowed unless:
- the claim is lodged in writing to KVM within7 days after Delivery was made; and
- the Buyer substantiates the Damage.
- Failure to claim within 7 days is evidence of satisfactory receipt of the Goods. Time is of the essence in this clause.
10. INDEMNITIES AND EXCLUSIONS
- The Buyer indemnifies KVM against any claim or allegation made against KVM by or liability to any Person including but not limited to the Receiver and the bailor for any Damage, personal injury (including death or disease) or other loss or injury (personal or property) arising out of or in connection with the supply of the Goods including solicitor-client indemnity costs incurred by KVM, irrespective of any negligence, breach of contract, bailment or wilful act or default of KVM.
- Subject to any implied warranty provided by the Competition and Consumer Act 2010, the Fair Trading Act 1987 (WA), the Fair Trading Act 2010 (WA) or any other Act (as amended from time to time) which may not be excluded, no warranty, condition or representation is given on the part of KVM and any express or implied warranty as to quality, fitness for purpose or otherwise of the Goods is hereby excluded.
- To the extent that KVM is subject to any implied warranties provided by the Competition and Consumer Act 2010, the Fair Trading Act 1987 (WA), the Fair Trading Act 2010 (WA) or any other Act (as amended from time to time) which may not be excluded, KVM limits its liability to the maximum extent allowed under that Act, or the Price (whichever is the lesser amount).
The Buyer may not cancel any order for Goods without KVM’s written consent. If the Buyer does so, in addition to any other rights KVM may have, it may retain any deposit paid, or in the event where no deposit has been paid may charge a cancellation fee of 20% of the value of the order/ goods.
If KVM has reasonably grounds to believe that the Buyer is in Default then without prejudice to KVM’s other rights and remedies available to it KVM may:
- cancel or withhold the supply of further Goods to the Buyer;
- enter any premises where it reasonably believes the Goods are stored and remove them. KVM will not be responsible for, nor indemnify the Buyer against, any damage caused or loss or liability incurred in entering the premises and removing the Goods.
- resell the Goods and apply the proceeds to reduce any Unpaid Balance after providing written notice to the Buyer's last known place of business or registered office of its intention to do so.
The Buyer charges all of its real and personal property with payment of all moneys due to KVM from time to time, and KVM may lodge a caveat against any real property owned by the Buyer, and/or register a security interest against all current and future property owned by the Buyer, as security for the payment of all money due to KVM by the Applicant from time to time.
14. ENTIRE AGREEMENT
This Contract is the entire agreement between KVM and the Buyer. No purported variation or modification of this Contract will have any effect unless it is in writing and signed by an authorised agent of KVM.
If any part of this Contract is unenforceable that part is severed from this Contract with the rest remaining in full force.
16. PROPER LAW AND JURISDICTION
This Contract is governed by the laws of Western Australia and where applicable, the laws of the Commonwealth of Australia and the parties submit to the non-excusive jurisdiction of the Courts of Western Australia. Any proceedings against KVM must be instituted within six (6) months of the cause of action arising. Time is of the essence for this clause.
17. BUYER AS TRUSTEE
In the case where the Buyer is a trustee of a trust, it is acknowledged that the Buyer is liable for the Price both as a trustee of the trust and personally in his/her own right.
Subject to clause 10(c):
- KVM may (but is not obliged to) accept Goods returned by the Buyer for credit or replacement.
- any Goods returned to KVM for credit or replacement must be accompanied by a copy of the original invoice.
- a Return Authorisation number must be obtained from KVM before any Goods are returned to KVM for credit or replacement. The Return Authorisation number must be displayed on the shipping label of Goods returned. Returned Goods will not be accepted or processed without a Return Authorisation number. A Return Authorisation number is valid for 7 days from the date of issue.
- no Goods will be accepted for credit or replacement after the date being 30 days after the date of purchase.
- the decision whether KVM grants the Buyer a credit or replacement, or simply returns the original Goods to the Buyer, is at KVM’s absolute discretion, after KVM has inspected the returned Goods. The mere issue of a Return Authorisation number, or KVM’s acceptance of any returned Goods, does not necessarily mean that KVM will grant the Buyer a credit or replacement.
- the Buyer will not be entitled to any credit for transport costs under any circumstances.
- the costs of transporting any returned Goods will be the responsibility of the Buyer.