DEFINITIONS AND INTERPRETATION
1. General – definitions and interpretation 1.1 In these Terms and Conditions (unless the context requires otherwise):
(a) “Seller” means [‘My Private I’ in its own capacity or trading as My Private I and/or any other business owned or operated by the Seller];
(b) “Buyer” ( and “grantor” within the meaning of the PPSA) means any person who enters into a contract with the Seller for the purchase of goods and includes:
(i) any successors or permitted assigns; or
(ii) if the Buyer consists of more than one person, both of them jointly and each of them severally;
(c) “carrier” means a carrier nominated by the Seller to make delivery of the goods;
(d) “goods” means any electronic components, parts, accessories and/or components or other goods supplied or to be supplied by the Seller as specified in an order from the Buyer accepted by the Seller and includes any services provided or to be provided by the Seller to the Buyer in relation to goods supplied or to be supplied.
(e) “grantor”, “collateral”, “chattel paper”, “financing statement”, “financing change statement”, “security interest”, “purchase money security interest or PMSI”, “attached”, “attachment”, “perfected”, “accession”, “comingled”, “liquid assets” and all related terms have the meanings given to them by the PPSA.
(f) “order” means an order placed with the Seller for the supply of goods.
(g) “PPSA” refers to The Personal Property Security Act 2009 (as amended) and any regulations thereto.
(h) “Terms and Conditions” means these terms and conditions (as amended pursuant to sub-clause 1.2 below).
1.2 These Terms and Conditions apply to the sale of goods by the Seller and all offers made by the Seller in relation to the Seller’s goods, unless varied, amended or cancelled by the Seller. The Seller may, at any time and from time to time by written notice to the Buyer, vary, revise or alter these Terms and Conditions. The placing of an order, receipt of goods ordered and/or subsequent payment of an invoice relating to goods supplied by/to the Buyer will be deemed acknowledgment and agreement to any amended, varied or altered Terms and Conditions.
1.3 The Buyer of goods from the Seller is deemed to have accepted these Terms and Conditions by executing a credit application and submitting it to the Seller or by placing an order with the Seller, whichever occurs first.
1.4 These Terms and Conditions take precedence over any terms set out in an order, to the extent of any inconsistency. Further, any special conditions as agreed between the Buyer and the Seller shall take precedence over these Terms and Conditions, to the extent of any inconsistency.
1.5 The Seller’s failure to insist upon strict performance of any of these terms or conditions or to object to any term or condition contained in any communication, whether written or oral, from the Buyer, shall not be deemed a waiver of these Terms and Conditions and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
1.6 These Terms and Conditions supersede all previous terms and conditions imposed by the Seller and override any terms and conditions of purchase used or submitted by the Buyer.
2. Quotes by the Seller
2.1 Subject to sub-clause 4.2, all quotations made by the Seller are valid for the period specified in the quotation, or if no such period is specified, for a period of fourteen (14) days from the date of the quotation. Following the expiration of this period, each quotation is subject to written confirmation by the Seller.
2.2 Any goods offered ex-stock by the Seller are available subject to no prior sale.
3.1 The Seller may require the Buyer to place written orders for the Seller’s goods. All quotations given and orders accepted by the Seller are given or accepted by the Seller subject to these Terms and Conditions, and to the exclusion of all other terms and conditions. A contract will be made only upon the acceptance of an order in writing by the Seller, which may be by supply of all or part of the goods ordered.
3.2 The Buyer must purchase at least the minimum order value of $50 and the minimum order quantity per line item determined by the Seller in its sole discretion and notified to the Buyer from time to time. Orders under this carry a $10 surcharge. No orders under $20 will be accepted in any case.
4.1 Subject to sub clause 4.2, and unless otherwise agreed, the purchase price for goods shall be the Seller’s list prices as at the date of the Seller’s acceptance of an order placed by the Buyer. The Buyer acknowledges and agrees that, in the event that any price quoted by the Seller is calculated on the basis of a per unit price or is based on minimum or specific quantities, the Seller may amend that price if there is any variation in the total quantity of goods ordered from that upon which the quotation was based. Any prices quoted in writing by My Private I will be valid for a period of 14 days from the date of offer.
4.2 All quoted prices of imported goods are based upon the freight on board (“FOB”) price of the Seller’s supplier and the rates of exchange, freight, insurance and customs or duty as at the date of quotation. The quoted prices may be varied by the same percentage amount by which the Seller’s actual costs of satisfying an order vary as a result of any change in the said price or in any of these rates or duties. In the case of variations in rates of exchange, the Seller reserves the right to increase its quoted price in relation to goods supplied to the Buyer by the same percentage as the percentage devaluation (if any) of the Australian dollar against the currency in which payment for the relevant goods is required to be made by the Seller to its supplier, calculated from the date of quotation by the Seller to the date of invoice, as disclosed by the variation in the National Australia Bank Ltd Spot Selling Rate in the relevant period.
4.3 In addition to the prices specified above, the Seller will charge the Buyer for the cost of delivery of the goods from the Seller’s store together with its standard packaging and handling charges from time to time. In addition, the Seller shall be entitled to charge separately for packing/packaging, which is not in accordance with the Seller’s customary standard of packing/packaging.
5. Terms of Payment
5.1 All invoices shall be paid in full in Australian currency not later than the last day of the month immediately following the date of invoice, (“30 days from End of Month” or “30 days EOM”) unless the Seller otherwise agrees in writing. Time shall be of the essence for payment of invoices.
5.2 In the event that the Buyer fails to make any payment to the Seller when payment falls due, the Seller shall have the right, without prejudice to any other right or remedy to which the Seller may be entitled, to charge interest on any overdue invoice at the rate of fifteen percent (15%) per annum calculated and payable, daily compounded from the due date until the invoice is paid in full. The Buyer must pay all costs and expenses (including fees and commission charged by any mercantile agent engaged by the Seller and legal costs on a full indemnity basis), which may be incurred whether involving the issue of legal proceedings or not by the Seller in the attempted recovery of the overdue amounts. Any payment by the Buyer shall be credited first against any interest so accrued, any such costs and expenses and the balance of payment, if any, shall be applied in reduction of the outstanding balance of the price.
5.3 The extension of credit facilities and the terms upon which such credit is provided to the Buyer are, in all cases, at the sole discretion of the Seller. The Seller may, at its absolute discretion and with notice to the Buyer, extend additional credit or increase or reduce credit limits. In any event the Seller retains the right to withdraw credit facilities at any time prior to delivery of goods. In the event of external debt recovery, no further goods shall be shipped, and the credit account will be closed. Upon payment in full credit facilities may only be resumed subject to a new credit application form being received by the seller, and successful credit risk assessment.
5.4 The Seller may apply payments received from the Buyer at its discretion and in any manner it sees fit, in reduction or satisfaction of invoices including but not exhaustively
(a) firstly, to satisfy an obligation that is not secured (within the meaning of the PPSA);
(b) second, to satisfy an obligation that is secured (within the meaning of the PPSA), but not a PMSI;
(c) third, to satisfy an obligation that is secured (within the meaning of the PPSA) by a PMSI for that obligation and using proceeds from the sale of goods the subject of that PMSI ; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source.
6. Delivery of Goods
6.1 Whilst the Seller will use its best endeavours to meet all quoted delivery or consignment dates the Seller shall in no event be liable to the Buyer or any other party for any loss or damage including direct or indirect or consequential injury, loss or damage whatsoever by reason of any delay in delivery or non-delivery whether the same is due to the negligence of the Seller or any other party, actions constituting fundamental breach of contract, strike or any other industrial action, or any other cause whatsoever.
6.2 If the Buyer wishes to use his/her/its own carrier, delivery of the goods shall be ex-Seller’s store and the Buyer shall pay all freight and insurance costs ex-Seller’s store and shall indemnify the Seller against all actions, suits, proceedings, claims or demands and all losses, expenses and liabilities, howsoever arising, from the transportation of the Seller’s goods delivered ex-Seller’s store once delivery has been made by the Seller to the Buyer’s carrier.
6.3 If delivery cannot be effected, the Seller may store the goods or redeliver the goods to the Buyer and the Buyer must pay or indemnify the Seller for all costs and expenses incurred.
7. Storage of Goods
7.1 In the event that, after notification to the Buyer that the goods are ready for delivery, delay in delivery is caused by the Buyer or caused by industrial disputes, including strikes and lockouts, circumstances such as fire, war, mobilisation or any other cause beyond the reasonable control of the Seller, the Seller shall be entitled, at its option, to arrange suitable storage, whether at its premises or elsewhere, and shall take reasonable steps to protect the Buyer’s interest in the goods. The Buyer shall pay all costs of storage, insurance, demurrage, handling and other charges associated with such storage.
8. Risk and Supply
8.1 All goods sold to the Buyer shall be at the Buyer’s risk immediately upon delivery to or collection by the Buyer, the Buyer’s nominee, the Buyer’s carrier, except where goods are held for the Buyer in accordance with clause 7, in which case risk shall pass to the Buyer on the date being seven (7) days from the date of notification to the Buyer that the goods are ready for delivery.
8.2 The Seller reserves the right to: (a) withhold supply to the Buyer where the Seller has insufficient goods to fulfil the order; the goods and/or services ordered have been discontinued; the Buyer is in breach of any contract with the Seller; or the Seller otherwise considers it appropriate for any other reason; or (b) supply by instalments. The exercise of these rights by the Seller or delay in supply for any other reason does not entitle the Buyer to either terminate any contract with the Seller or claim any loss or damage.
9. Title of Goods
9.1 Title to and property in the goods supplied by the Seller shall not pass to the Buyer until the Seller has received payment in full of the price of all goods supplied by the Seller to the Buyer at any time and the Buyer has discharged all existing indebtedness to the Seller, whether for the price of the goods supplied or for any other amount which may be owing by the Buyer to the Seller on any other account (some of which may not necessarily be due for payment); provided however that the Buyer shall bear the risk of any loss or damage to or deterioration of the goods from whatever cause arising following delivery of the goods to the Buyer. If the Buyer fails to honour any of these Terms and Conditions of sale, the Seller, without notice, will have the right to take possession of the goods which are the subject of this reservation of title, or trace the proceeds of the sale thereof, as the case may be, and to recover the full amount owing to the Seller together with interest and costs, if any.
9.2 The Buyer acknowledges that until property and ownership in the goods passes to the Buyer in accordance with sub-clause 9.1, the Buyer is in possession of those goods for and on behalf of the Seller as a fiduciary bailee and agent and is only authorised to sell the goods (in the Buyer’s own name and not as agent of the Seller) in the ordinary course of the Buyer’s ordinary business. 10. Personal Property Security Act 2009 (Cth) 10.1 The Buyer acknowledges and agrees that these Terms and Conditions constitute a security agreement and the Buyer:
(a) grants to the Seller a PMSI, for the purposes of the PPSA and that PMSI exists in all goods (and their proceeds) supplied by the Seller to the Buyer effective from 1st February 2012 (if any) and all future goods supplied (and their proceeds) without the need for further action or agreement;
(b) agrees that the PMSI has attached to all goods supplied to the Buyer since 1st February 2012 (in respect of which invoices remain unpaid) or in the future, is attached to all goods supplied to the Buyer from the date of these Terms and Conditions, and that the attachment of the PMSI has in no way been deferred or postponed;
(c) acknowledges that he/she/it has received value for the PMSI granted to the Seller.
10. Personal Property Security Act 2009 (Cth)
10.1 The Buyer acknowledges and agrees that these Terms and Conditions constitute a security agreement and the Buyer: (a) grants to the Seller a PMSI, for the purposes of the PPSA and that PMSI exists in all goods (and their proceeds) supplied by the Seller to the Buyer effective from 1st February 2012 (if any) and all future goods supplied (and their proceeds) without the need for further action or agreement; (b) agrees that the PMSI has attached to all goods supplied to the Buyer since 1st February 2012 (in respect of which invoices remain unpaid) or in the future, is attached to all goods supplied to the Buyer from the date of these Terms and Conditions, and that the attachment of the PMSI has in no way been deferred or postponed; (c) acknowledges that he/she/it has received value for the PMSI granted to the Seller.
10.2 The Buyer will execute documents and do such further acts as may be required by the Seller to register the security interest/PMSI granted to the Seller under these Terms and Conditions under the PPSA and/or provide all information necessary to enable the Seller to perfect and maintain the perfection of any security interest/PMSI granted under these Terms and Conditions including but not exhaustively, by registration of a financing statement. The Buyer agrees to indemnify the Seller, upon demand, for all costs and expenses the Seller incurs in registering and maintaining any financing statement or a financing change statement.
10.3 Until the ownership of goods passes to the Buyer, the Buyer must not;
(a) give the Seller a written demand or allow any other person to give the Seller a written demand requiring the Seller to register a financing change statement under the PPSA; or
(b) enter into or allow any other person to enter into the register of personal property securities set up and maintained pursuant to the PPSA, a financing statement or a financing change statement in respect of goods supplied by the Seller (and/or their proceeds), and will immediately notify the Seller if the Buyer becomes aware of any person taking steps to register a financing statement or a financing change statement in relation to such goods; or
(c) allow the goods to become accessions or comingled with other products unless the Seller has first perfected any security interest that it has in the goods (or their proceeds)
10.4 Until ownership of the goods passes to the Buyer, and to the extent permitted by law, the Buyer waives his/her/its rights under Chapter 4 of the PPSA:
(a) to receive a copy of any verification statement in respect of any financing statement we register pursuant to the PPSA;
(b) to receive any notice of intention of removal of an accession;
(c) to receive a notice that the Seller decides to enforce its security interest in accordance with applicable land law;
(d) to receive a notice on enforcement of security in liquid assets;
(e) to receive a notice on enforcement action against liquid assets;
(f) to receive a notice to seize collateral;
(g) to receive notice on enforcement of security interests in liquid assets;
(h) to receive a notice of disposal of goods by the Seller purchasing the goods;
(i) to receive a notice to dispose of goods;
(j) to receive a statement of account following disposal of goods by the Seller;
(k) to receive a statement of account if no disposal of goods by the Seller, for each 6 (six) month period;
(l) to receive notice of any proposal of the Seller to retain goods;
(m) to object to any proposal of the Seller to either retain or dispose of goods;
(n) to redeem the goods; and
(o) to reinstate a security agreement between the Buyer and the Seller following termination.
10.5 The Buyer further agrees that where the Seller has enforcement rights in addition to those under Chapter 4 of the PPSA, those rights (including those expressed in these Terms and Conditions) will continue to apply. 10.6 The Buyer irrevocably grants to the Seller the right to enter upon the Buyer’s property or premises, without notice, and without in any way being liable to the Buyer or to any third party, if the Seller has cause to exercise any of the Seller’s rights under the PPSA, and the Buyer shall fully indemnify the Seller from any costs (including legal costs and expenses) or claims made by any third party as a result of such exercise.
11. Return of Goods and Cancellation of Orders
11.1 The Buyer may within seven (7) days of receipt of any goods claim the right to reject any goods which are wrongly supplied or oversupplied, or which are not in accordance with any express or implied representations, warranties, terms or conditions of the contract of sale, without limiting the Seller’s right to dispute any such claim. If the Buyer fails to notify the Seller in writing of its claim for rejection and reasons therefore within such period the Buyer will, subject always to clause 16 of these Terms and Conditions, be deemed to have accepted such supplies.
11.2 Return of any of the goods cannot be made by the Buyer without the Sellers prior written authorisation approved in a Returned Material Authorisation (“RMA”).
11.3 In the event that the Buyer returns goods other than in accordance with sub-clause 11.2, subject always to clause 16 of these Terms and Conditions, the Seller shall re-consign those goods to the Buyer, freight collect.
11.4 The Buyer shall not cancel any order without the prior written consent of the Seller, which consent may or may not be granted in the Seller’s sole discretion and on terms that will indemnify the Seller for all losses.
11.5 In the event that the Seller agrees to the cancellation of an order, the Seller may as a condition of such cancellation, require the payment by the Buyer of a cancellation fee of an amount determined by the Seller in its reasonable discretion to compensate it for the loss suffered by it arising out of the cancellation. A restocking fee of 20% applies.
11.6 At the Seller’s option, any order may be terminated by the Seller in the event of the insolvency of the Buyer or in the event of execution being levied against any of the property of the Buyer or in the event of the Buyer being placed in liquidation (whether voluntary or otherwise), a receiver & manager or administrator being appointed in respect of the assets or undertaking of the Buyer or the Buyer entering into a deed of composition or arrangement with its creditors or any of them, or in the event that for any reason, in the Seller’s reasonable opinion, the Buyer is unlikely to be able to make payment for the goods on the due date.
12. Export and/or Re-export Limitation
12.1 The Buyer must have regard to and take responsibility for all current statutory or other government regulations in force from time to time concerning export rules, regulations and restrictions in force from time to time and regardless of any disclosure made by the Buyer to the Seller of an ultimate destination for any goods or products, the Buyer will not export or re-export directly any goods or other products without first obtaining all such written consents or authorisations as may be required by any applicable government rules or regulations.
13. Warranty and Exclusion of Liability
13.1 To the extent permitted by law, the Seller warrants to the Buyer that under proper use in accordance with the Seller’s specifications and instructions (if any), the goods will be free from defects solely due to faulty workmanship and materials during a period of twelve (12) months from delivery, to the extent that upon authorised return to the Seller during that period, freight pre-paid, of any part of the goods covered by this warranty the Seller shall if it finds such a part to be so defective in its sole opinion, at its option repair such part or supply (but not fit) a replacement part, provided that:-
(a) the goods or any part thereof are not, and have not been, without the Seller’s consent, altered, repaired or subjected to any technical attention by any person other than the Seller’s authorised representatives;
(b) the provision of this sub-clause 13.1 may, at the Seller’s option, be varied or replaced by specific warranty conditions issued in respect of particular products; and
(c) this warranty does not cover damage due to normal wear and tear, improper installation, use of any of the Seller’s goods in life support products, misuse or neglect or where goods have been subjected to operating or environmental conditions in excess of maximum values in the applicable specification.
(d) If there is no manufacturers fault found, all charges ( parts) plus $50 administration fee applies, freight charges are also to be paid by the customer
13.2 To the extent permitted by law and except as expressly provided in sub clause 13.1, all warranties, representations, terms and conditions, concerning the goods or services to be supplied by the Seller in respect of the goods, including but not limited to warranties, representations, terms or conditions regarding the ability of goods to be used in life support products, whether express or implied, are hereby expressly excluded.
13.3 To the extent permitted by law, the Seller shall not be liable, nor shall there be any remedy against the Seller in respect of any claim, whether contractual, tortious, statutory, in common law or in equity or actions constituting fundamental breach of contract, or otherwise, for any loss, damage, costs (including legal costs), expenses or other injury or harm suffered by the Buyer or any other person in relation to or arising out of use of the goods or in relation to or arising out of services supplied by the Seller in relation to the goods, including but not limited to, loss of profits, loss of business, unavailability of goods or losses arising from claims by third parties.
13.4 Where the Seller is not permitted under the Competition and Consumer Act 2010 (Cth) (as amended), or other applicable laws to exclude, restrict or modify its liability for the breach of a condition or warranty that is implied by the Competition and Consumer Act 2010 (Cth) (as amended) or any other applicable laws but is permitted to limit its liability for the breach of such condition or warranty, then, to the extent to which the Seller is entitled to do so, the Seller’s liability (if any) shall be limited, at its option, to:-
(a) in the case of goods:-
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired,
(b) in the case of services:-
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
14. Intellectual Property
14.1 The Buyer acknowledges that all rights in respect of patents, copyrights, design rights, trade marks or other industrial or intellectual property rights connected with the goods shall not pass to the Buyer. The Buyer shall indemnify the Seller against any and all liabilities, claims and costs incurred by or made against the Seller as a direct or indirect result of carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.
15. Governing Law
15.1 These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State or Territory nominated by the Seller, in its absolute discretion, or failing any nomination the laws of the State of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of the State or Territory nominated or failing nomination the Courts of the State of New South Wales.
16.1 The Seller’s policy is one of continuous development and the Seller therefore reserves the right to improve, alter or discontinue specifications without prior notice. All illustrations or samples are intended as approximate representations only and are not binding in detail with regard to finishes, colour and specifications. The Seller accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage) directly or indirectly arising out of or in connection with same.
16.2 In the event the Buyer provides the Seller with specifications for the manufacture of goods by the Seller for the Buyer, the Buyer warrants to the Seller that the specifications and any goods manufactured by the Seller based on the said specifications will not infringe the copyright, patent, design or other intellectual property rights of any third party, and the Buyer will indemnify and keep indemnified the Seller from and against any and all claims, liabilities, obligations, expenses or damages the Seller may suffer or incur as a result of the use by the Seller of the specifications.
17. Force Majeure
17.1 The Seller will not be liable for any loss incurred as a result of delay or failure to meet an accepted order or to observe any of these Terms and Conditions (other than an obligation to pay money) due to an event of force majeure, being any cause or circumstance beyond the Seller’s control, including but not limited to any failure or delay in performance caused by any strikes, lock-outs, labour disputes, fires, terrorist acts, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by any Government or any semi-Government authorities or embargos.
17.2 During the continuance of an event of force majeure affecting the Seller, its obligations hereunder will be suspended and will resume as soon as possible after the cause or circumstance has ceased to have effect.
18.1 The Buyer charges with any indebtedness to the Seller all legal and beneficial interest (freehold and leasehold) in land held now or in the future by the Buyer.
My Private I endeavours to protect your privacy by: Only collecting information from those with whom we deal which is necessary for our business to adequately service our customers. Except where the law says otherwise, the external organisations having access to this information are approved mailing houses which mail our marketing material to our customers, credit card/credit reference companies for finance approval, debt recovery agencies or solicitors. These include Dunn & Bradstreet, CreditorWatch and other credit reporting agencies from time to time. The customer accepts this and agrees to these conditions. My Private I is committed to comply with all its obligations under the Privacy legislation. Pursuant to this commitment My Private I has a privacy officer to assist with any enquiries, contactable on firstname.lastname@example.org.