Terms and Conditions of Trade with Hi Tech Lockers
- Entire Agreement:
(a) The provision of goods and services by Hi Tech Lockers is done so on the basis of the following terms which the Customer agrees to be bound by.
(b) These terms and conditions apply to all dealings between Hi Tech Lockers and the Customer unless amended in writing by the directors of Hi Tech Lockers, or as updated in accordance with 1(c) as follows.
(c) Hi Tech Lockers may update or amend these terms from time to time by way of written notice to the Customer in which case the Customer shall be deemed to have accepted the revised terms by reason of any future order placed after the date of notice.
(d) All rights and conditions implied by law shall be excluded unless such right or condition cannot be excluded by reason of legislative prohibition in which case such right or condition shall prevail in the event of any inconsistency with these terms.
- Payment & charges:
(a) The Customer shall be liable to pay Hi Tech Lockers for the goods and services supplied calculated in accordance with the price stated on quote or price schedule at the time of the purchase order within the timeframe indicated the Customer’s approved Credit Application, and where there is no approved Credit Application, within 7 days from date of invoice. Unless otherwise approved in the Credit Application invoices shall be issued once the goods are ready for dispatch by Hi Tech Lockers.
(b) In the event that the Customer fails to pay its account in full in accordance with clause 2(a) Hi Tech Lockers may:
(i) terminate or suspend: the Customer’s account, any pending or unfulfilled orders, and right to purchase further goods and services on credit
(ii) amend the Customer’s payment terms as Hi Tech Lockers determines at its absolute discretion
(iii) apply interest to the amount due at the rate of 10% per annum calculated daily until paid in full.
(c) The Customer acknowledges, and shall not be entitled to withhold payment of any amount said to be owing to Hi Tech Lockers by reason of the making of a warranty claim, any cross claim or set off.
(d) The Customer acknowledges that this agreement shall be used as a bar to any proceedings, or defence filed in the form of a cross claim or set off while the Customer’s account remains unpaid.
(e) Invoices paid by credit card shall attract a surcharge of 2.2% for American Express and 2.2% for Visa or Mastercard.
(f) Any discount given by Hi Tech Lockers to the Customer for the goods or services purchased as compared to Hi Tech Lockers’ usual price list as advertised on its website from time to time, including for batch or large orders, shall be contingent upon the Customer observing and complying strictly with these terms and conditions including payment terms. Breach of these terms shall render any discount forfeited.
- Orders, Pricing and deposits:
(a) The Customer may purchase goods and services from Hi Tech Lockers online via Hi Tech Lockers’ website or by way of acceptance of written quote of an authorised representative of Hi Tech Lockers.
(b) Upon receipt of an order Hi Tech Lockers shall be entitled to cancel all or part of the order if Hi Tech Lockers, acting reasonably, considers that it is unable to fulfil the order within a reasonable time or on the terms so offered including by reason of:
(i) market conditions and demand
(ii) supply chain restrictions
(iii) labour or materials shortages
(iv) the commercial viability of fulfilling the order, including a subsequent increase in price in the goods or input costs (such as fuel, labour or materials).
(c) Hi Tech Lockers may, in lieu of cancellation or all or part of the order, seek the Customer’s approval to vary the price of the Goods in order to fulfil the order upon which the Customer’s approval shall be taken to vary the order to the new price quoted.
(d) If Hi Tech Lockers fulfils part of any order the Customer is liable to pay the amount of the goods and services supplied notwithstanding that the balance of the order has not or cannot be supplied.
(e) Notwithstanding the payment terms stated within, Hi Tech Lockers may, at its absolute discretion, give notice to the Customer after receipt of order that the order cannot be supplied unless the Customer pays a deposit towards the costs of the goods and services (‘Notice of Deposit’). Where Notice of Deposit is given the order shall not proceed until such time as the Customer pays and Hi Tech Lockers receives the deposit so requested.
(f) Orders cancelled by the Customer shall be liable to a cancellation fee calculated as a percentage of the value of the order relative to the progress of the order in the manufacturing process, or other costs incurred by Hi Tech Lockers (such as handling costs), as at the date of cancellation. The cancellation fee is due and payable immediately upon cancellation of an order.
- Uncollected goods and storage:
(a) If goods are undeliverable for whatever reason Hi Tech Lockers undertakes to hold same in safe keeping for a period of up to 3 months. The cost of the storage shall be paid by the Customer calculated as 3% of the value of the order retained per month. Hi Tech Lockers shall be entitled to retain the goods until such time as payment of the storage fees have been paid.
(b) If after the period of storage noted in clause 4(a) the goods are not collected or delivered (and regardless of whether the goods have been paid for) then the Customer authorises Hi Tech Lockers to dispose of same by way of public auction, or in the course of its usual trade and apply the proceeds of same firstly in payment of the storage and attempted delivery (if any) fees, secondly against any auction costs and any incidental costs of Hi Tech Lockers (including the costs of its employees or agents or solicitors in arranging the sale or disposal of the goods) and the balance to the NSW Treasury under the Uncollected Goods Act 1995, or like authority under the applicable legislation of the State where the goods are stored.
- Delivery and freight:
(a) Date of delivery is provided as an estimate only.
(b) The Customer shall not make any demand, delay payment or claim against Hi Tech Lockers for any loss suffered by the Customer by reason of a delay in delivery of the goods.
(c) Unless where stated that the price of the goods includes delivery, the Customer shall be liable for the cost of delivery.
(d) The Customer authorises Hi Tech Lockers to subcontract delivery of the goods in which case the Customer agrees to be bound by the subcontractor’s terms and conditions of freight and any applicable charges.
(e) Delivery of the goods shall be deemed to be effected where they are left at the premises of the Customer signed for by a person appearing to work or reside at the said premises.
(a) Any agreement by Hi Tech Lockers to install the goods shall be taken to be an agreement to act as an intermediary between the installer and the Customer.
(b) The Customer agrees that Hi Tech Lockers is not liable for and the Customer shall make no claim against Hi Tech Lockers for any damage, loss or injury occasioned by reason of or during the course of installation of the goods.
- Risk and Title
(a) Risk in the goods passes to the Customer upon the first in time of:
(i) the goods being delivered to the Customer or its premises; and
(ii) the Customer taking possession of the goods.
(b) Title of goods shall not pass to the Customer until receipt of payment in full by Hi Tech Lockers.
(c) Pending payment the Customer holds the goods as bailee for Hi Tech Lockers and undertakes to keep the goods separate from other goods of the same kind.
(d) Any proceeds of sale of the goods shall be deemed to be held upon trust for Hi Tech Lockers and shall be remitted to Hi Tech Lockers upon demand in payment towards the amount owing to Hi Tech Lockers for the supply of the goods.
(e) While any amount remains owing on the goods the Customer authorises Hi Tech Lockers to enter any premises and retake possession of the goods, resell the goods and apply the sale proceeds against the balance of the account without being liable to resupply the Customer with replacement goods.
(f) If the Customer fails on reasonable demand being made to pay charges due to Hi Tech Lockers in respect of any goods or services provided by Hi Tech Lockers then Hi Tech Lockers may detain and/or sell any of the goods of the Customer which are in its possession at any time and whether the charges relate to that contract or previous contracts and, out of the monies arising from such sale, retain any monies due to Hi Tech Lockers together with all charges and expenses of the detention and/or sale and shall render the surplus (if any) of the monies arising from any sale, and such of the goods as remain unsold, to the party entitled thereto. Any such sale shall not prejudice or affect the right of Hi Tech Lockers to recover from the Customer the balance of any such charges due or payable.
(g) The purchase of goods from Hi Tech Lockers does not confer on the Customer any intellectual property rights in the goods, which shall remain with Hi Tech Lockers.
- Personal Property Security Act 2009 (‘the Act’):
(a) The Customer grants Hi Tech Lockers a security interest pursuant to the Act in all goods supplied or held by Hi Tech Lockers pending payment of the account relating to same.
(b) While the Customer complies with these terms and conditions Hi Tech Lockers will not seek to register its interest in the goods, but shall do so in the event of a breach of these terms by the Customer, including payment outside of the above trading terms.
(c) The Customer will, upon request, execute any documents, provide all necessary information and do anything else required by Hi Tech Lockers to ensure that the security interest constitutes a “Perfected Security Interest” as defined in the Act, in order for the interest to have priority over all other security interests in the goods not already registered.
(d) In the event that the Customer is in breach of these terms and Hi Tech Lockers takes steps to register its interest then the Customer agrees to pay upon demand all of Hi Tech Lockers’ expenses and legal costs (on a solicitor and client basis) in or in connection with the registration of a financing statement or financing change statement relating to the security interest created by this agreement.
- Charge and Security:
(a) in this clause ‘Property’ shall mean real property while the Act is in force and both real and personal property if the Act is repealed or no longer applies to personal property.
(b) The Customer hereby charges in Hi Tech Lockers’ favour all of its estate and interest in any property that it owns now or in the future with due payment to Hi Tech Lockers of all monies owing or may become payable in accordance with this agreement.
(c) Hi Tech Lockers has a lien on the goods and all associated documents. The lien is a general lien for all monies owing, or alleged by Hi Tech Lockers to be owing, by the Customer to Hi Tech Lockers.
- Recovery action:
(a) The Customer indemnifies Hi Tech Lockers for all recover costs and charges incurred by it in connection with the recovery of any amount owing to Hi Tech Lockers, or the registration of any instrument to give security for payment, including mercantile agent fees, court and solicitor fees, and on the solicitor and client basis, NSW Land and Registry Services fees and ASIC search and registration fees.
- Warranty and returns:
(a) The Customer acknowledges that all warranties are dictated by the manufacturer of the Goods and Hi Tech Lockers will act as an intermediary between The Customer and the manufacturer.
(b) The Customer acknowledges that the manufacturing process may produce superficial blemishes to the goods, including irregularity in the powder coating, weld marks, as well as other markings on the non-visible surfaces of the goods (once installed) (‘superficial defects’). The Customer shall make no claim, delay payment or seek to return the goods by reason of a superficial defect.
(b) Except for superficial defects, or defects caused by reason of misuse of the goods by the Customer or its invitees, Hi Tech Lockers shall repair (and if such cannot be repaired – replace) any defective goods in accordance with the Manufacturer’s Warranty applicable at time of purchase.
(c) The Customer shall be liable to pay all freight costs to and from Hi Tech Lockers to have the goods repaired.
(d) The Manufacturer’s Warranty is in addition to and subject to the Customer’s rights under the Australian Consumer Law.
- Liability and indemnity:
(a) To the fullest extent permitted by law, Hi Tech Lockers will not be responsible for any loss or damage, including loss of profit, direct, indirect or consequential loss, howsoever caused or arising, whether an authorised or unauthorised act under this contract or the supply of goods and services, and whether caused by the negligence and/or recklessness and/or willful negligence or misconduct of Hi Tech Lockers’ servants, agents, employees, subcontractors or otherwise, nor from any loss or damage resulting from or attributable to any quotation, statement, representation or information, oral or written, made or given on behalf of Hi Tech Lockers or its servants, agents employees or subcontractors.
(b) This clause shall not be construed so as to exclude or limit any liability of Hi Tech Lockers to consumers which arises under the Australian Consumer Law or other State of Federal legislation, or pursuant to the Manufacturer’s Warranty. To the extent that it may be permitted by the legislation the liability of Hi Tech Lockers, if any, shall be limited to the supplying again of any goods and services to be supplied by Hi Tech Lockers to the Customer or the payment by Hi Tech Lockers to the Customer in the amount equal to the cost of purchasing the goods again.
(c) The Customer indemnifies Hi Tech Lockers in respect of any liability, cost (including legal and recovery costs on a solicitor and client basis) or expense whatsoever and howsoever arising in connection with the goods and shall indemnify Hi Tech Lockers in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, or other outlay whatsoever or howsoever caused, whether arising directly or indirectly or indirectly from any service arranged or performed by Hi Tech Lockers in respect of the goods and/or in respect of any such cost incurred as a result of any breach of the terms, conditions or warranties in this contract by the Customer.
- Credit Limit:
Hi Tech Lockers shall increase or decrease the Customer’s credit limit at its sole discretion and without notice to the Customer.
- Change in Ownership:
Before placing an order the Customer must advise Hi Tech Lockers in writing any change in ownership of the partnership, business or company of the Customer, including a change in shareholding of more than 25% (aggregated), together with any change in the directors, whether or not guarantors to this agreement, as compared to the ownership when the credit application was first applied for (where applicable).
- Jurisdiction & Disputes:
(a) The Customer hereby acknowledges that this contract is made in the State of New South Wales and submits to the jurisdiction of the appropriate Court in that jurisdiction in the event of a dispute.
(b) Where a dispute arises as to the payment of the Customer’s account the Customer agrees to pay into an interest bearing trust account of Hi Tech Lockers or its solicitors all monies claimed outstanding by Hi Tech Lockers before being entitled to dispute the debt. The Customer acknowledges that this clause will operate as a bar commenced against Hi Tech Lockers and as a bar to any defence in proceedings commenced by Hi Tech Lockers until such time as payment required by this clause is made.
It is agreed that if any provision of this contract is unenforceable such provision is severable and its unenforceability will not effect any other part or provision of this contract.
- Force Majeure:
Hi Tech Lockers will not be liable and shall not be taken to have failed to perform its obligations to deliver the goods as a result of Force Majeure, being any act which is outside the control of Hi Tech Lockers, including industrial action, accident, breakdown, natural disasters, import or export restrictions, government (such as public health) orders which affect the normal trading and manufacturing operations of Hi Tech Lockers.
- Credit Information and Privacy:
(a) The Customer authorises Hi Tech Lockers to share credit information regarding this agreement with third parties and to conduct due diligence by contacting third parties to verify the information contained in this application, or any other document, and investigate or make enquiries from time to time with those third parties as Hi Tech Lockers sees fit so to assess the credit worthiness at any point in time.
(b) The authority given in this clause is an irrevocable authority and this agreement may be used as evidence of the Customer’s consent when contacting third parties.
Any notice to be given by Hi Tech Lockers to the Customer shall be sufficiently given if sent by email to the last know email address of the Customer as provided by the Customer to Hi Tech Lockers, or by prepaid ordinary mail enclosed in an envelope addressed to the Customer at the address nominated on this account or his/her or its last known address. Any notice posted pursuant to the provisions hereof shall be deemed to be delivered the next business day after the date of postage. The deemed service provisions of this clause shall apply notwithstanding any evidence of the Customer in relation to actual notice or lack thereof.
- Joint and Several:
If the credit application (if applicable) is completed in the name of a partnership then the partners of that business at any one time shall be jointly and severally liable to Hi Tech Lockers for any outstanding account and this will be so notwithstanding any agreement, compromise or arrangement with one or more of the partners.
The Customer shall be in breach of this agreement if at any time it becomes the subject of bankruptcy proceedings, voluntarily enters into bankruptcy, goes into liquidation either compulsorily or voluntarily, if a receiver is appointed in respect of the whole or any part of its assets, if it makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things, or any judgment is made against the Customer or any similar occurrence under any jurisdiction affects the Customer.
‘Customer’ means the person, persons or company named in page 1 of the Credit application form, or if an existing account holder, the person, persons or company holding that account, or if there is no such credit account: the person, persons or Company that has placed the order for the goods.
‘Goods’ means the goods agreed to be supplied by Hi Tech Lockers in accordance with the purchase order made by the Customer.
‘Hi Tech Lockers’ means MI Asset Holdings Pty Ltd (ACN 660 327 533 ) and each of their subsidiaries, divisions, related entities, assignors and successors.
‘Manufacturer’s Warranty’ means the Product Warranty applicable as at the date of order available on request.