Terms & Conditions of Trade
For Customers in Australia, New Zealand and Singapore
Definitions
1.1. “ACL” means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.2. “Customer” means the person/s requesting the Seller to provide the Goods as specified in any proposal, quotation, Order, invoice or other documentation, and:
a) includes any person acting on behalf of and with the authority of the Customer;
b) if there is more than one Customer, is a reference to each Customer jointly and severally;
c) if the Customer is a part of a trust, shall be bound in their capacity as a trustee; and
d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3. “Force Majeure” means a circumstance beyond the reasonable control of the parties and which results in a party being unable to observe or perform on time an obligation under these Terms. Such circumstances include, but are not be limited to, acts of God, lightning strikes, earthquakes, floods, droughts, storms, tsunamis and any other natural disasters, explosions, fires, acts of war, terrorism, civil uprising, malicious damage, sabotage and revolution.
1.4. “Goods” means all goods or services supplied by the Seller to the Customer at the Customer’s request from time to time and which are as described in an Order, invoice, or any other forms as provided by the Seller to the Customer.
1.5. “GST” means Goods and Services Tax (GST) as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.6. “Order” means an order for Goods submitted by a Customer, either via the Website, directly to the Seller or otherwise.
1.7. “Price” means the price payable (exclusive of GST) for the Goods as specified from time-to-time by the Seller.
1.8. “Seller” means Aplos Furniture Pty Ltd (ACN 112 057 146) (trading as “Aplos”).
1.9. “Terms” means these terms and conditions.
1.10. “Website” means https://aplosfurniture.com/ and any other website on which these Terms appear.
Acceptance
2.1. The Customer is taken to have accepted and is immediately bound by these Terms if the Customer places an Order for, or accepts delivery of, the Goods.
2.2. Upon acceptance, these Terms are binding and 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 Customer and the Seller.
2.3. Each Order made by the Customer to the Seller shall be subject to the written acceptance of the Seller, and the Seller may accept or reject any Order without liability to the Customer. Notwithstanding this, the Seller will use its best endeavors to fulfil any Orders submitted by the Customer if it is reasonably able to do so.
Price & Payment
3.1. In consideration for the purchase of the Goods, the Customer must pay:
a) the Price quoted by the Seller, which is valid for the period stated in the quotation, or if no period is specified, for a period of thirty (30) days;
b) the Price indicated on any invoice provided by the Seller to the Customer; or
c) the applicable Price for the relevant Goods as displayed on the Website or as otherwise confirmed by the Seller at the time of the Order.
3.2. The Seller reserves the right to change the Prices at any time prior to acceptance of the Order by the Seller. In the event of a variation of the Price of the Goods specified in an Order, the Customer will be notified and must confirm its acceptance of such variation to proceed with the Order. If the Customer does not accept such variation, the Seller will not be obliged to complete the Order.
3.3. The Seller, in its sole discretion, may require that a deposit is payable to secure the Order. If such a request is made, your Order will not be accepted by the Seller until the deposit is received by the Seller.
3.4. The Price will be payable by the Customer on the date/s notified by the Seller, which may be:
a) on delivery of the Goods;
b) by way of instalments/progress payments in accordance with the Seller’s payment schedule;
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 Customer by the Seller.
3.5. Payment may be made by any of the payment methods specified by the Seller.
3.6. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
3.4. The Price of the Goods are stated in Australian dollars and shall be exclusive of GST unless stated otherwise. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price.
3.5. The Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods
4.1. The Seller will deliver the Goods specified in an Order to the delivery location specified by the Customer. The Seller will deliver the Goods between the hours of 9 am to 5 pm on any Monday to Friday, which is not a public holiday in the State of Victoria.
4.2. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
a) the Customer takes possession of the Goods; or
b) a third party nominated by the Customer takes possession of the Goods, in which event the third party shall be deemed to be the Customer’s agent; or
c) the Customer’s nominated carrier takes possession of the Goods, in which event the carrier shall be deemed to be the Customer’s agent; or
d) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
4.3. Unless expressly stated otherwise, the cost of delivery is in addition to the Price, and is payable at the same time as the Price, or such other time as determined by the Seller.
4.4. On receipt of the Customer’s order, the Seller shall require final details of finishes required, without this information the Order may not be processed, which may result in a delayed delivery date.
4.5. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged, the Seller shall be entitled to charge a reasonable fee for redelivery.
4.6. If the Customer requests, prior to the date for delivery, for the Goods to be delivered to a location other than the delivery location specified by the Customer or wishes to alter any delivery instructions, the Seller shall use reasonable endeavors to comply with the request, but otherwise shall be under no obligation to do so. The Seller may, in its reasonable discretion, determine what conditions or additional fees, if any, shall apply in the event of it agreeing to such a request.
4.7. In the event the Customer requests delayed delivery on all, or part, of the Goods beyond the acknowledged delivery date, the Seller may (at their sole discretion) store the Goods for the Customer on the following terms:
a) the Customer shall be charged for storage at a rate not less than five percent (5%) of the Price per week for each week after the original delivery date; and
b) the Customer shall be required to immediately make payment in full for the Goods; and
c) all risk for the stored Goods shall pass to the Customer.
4.8. The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with these Terms.
4.9. Installation of the Goods is not included in the Price unless expressly stated otherwise.
4.10. The Customer shall ensure that the Seller has clear and free access to the delivery address at all times to enable them to undertake the delivery and/or installation of the Goods. The Seller shall not be liable for any loss or damage to the delivery address (including, without limitation, damage to pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of the Seller.
4.11. Any time or date given by the Seller to the Customer for delivery is an estimate only and is subject to the availability of materials from outside suppliers. The Customer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
4.12. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
Goods
5.1. The Customer acknowledges that the Seller may substitute any component of the Goods prior to delivery without consultation with the Customer and may modify the Goods if, in the reasonable opinion of the Seller, such substitution or modification will not:
a) adversely affect the performance or capacity of the Goods;
b) alter the configuration of the Goods in any material respect; or
c) otherwise materially affect the obligations of the Seller under these Terms or prejudice the rights of the Customer under these Terms.
5.2. The Customer acknowledges that variations in veneer configuration and colour occur naturally and may be evident in the finished Goods.
5.3. Timber and Marble are natural products and shade tone, markings, and veining may vary from samples of the Goods provided to the Customer. The Seller will make every effort to match samples to the Goods supplied, but will not be liable in any way whatsoever for any variation between the samples and the Goods supplied.
5.4. The Customer acknowledges that Goods supplied may:
a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time;
b) expand, contract or distort as a result of exposure to heat, cold, weather;
c) mark or stain if exposed to certain substances; and
d) be damaged or disfigured by impact or scratching.
Risk
6.1. Risk of damage to or loss of the Goods passes to the Customer on Delivery and it is the responsibility of the Customer must insure the Goods on or before Delivery.
6.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by the Seller is sufficient evidence of the Seller’s right to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.3. If the Customer 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 Customer’s sole risk.
Risk
7.1. The Seller and the Customer agree that ownership of the Goods shall not pass to the Customer until:
a) the Customer has paid the Seller the Price for the Goods in full; and
b) the Customer has met all of its other obligations outlined in these Terms.
7.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3. It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 7.1 of these Terms:
a) the Customer holds the Goods as fiduciary bailee of the Goods and must return the Goods to the Seller on request;
b) the Customer holds the benefit of the Customer’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 Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer 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 Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer 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 Customer 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 Customer 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; and
h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not yet passed to the Customer.
Purchasing Goods From The Seller’s Website
8.1. Any Order placed by a Customer from the Website is an offer by the Customer to purchase particular Goods from the Seller for the Price stated on the Website (including the delivery and other charges).
8.2. By placing an Order on the Website, the Customer is agreeing to pay for and accept delivery of the Goods.
8.3. All orders placed on the Website are subject to confirmation and acceptance by the Seller.
8.4. The Seller may change the Prices published on the Website at any time and without any prior notice.
8.5. While every effort is made to ensure the accuracy of Prices and information displayed on the Website, the Seller reserves the right to accept or reject the Customer’s Offer for any reason, including without limitation, the unavailability of any Goods, an error in the Price, an error in the description of the Goods or an error in the Order.
8.6. All prices quoted on the Website are in Australian Dollars and are inclusive of GST except where stated.
8.7. For each online Order, the Customer must pay, via the accepted payment methods, the applicable Price for the relevant Goods confirmed by the Seller and a delivery and handling fee as calculated by the Seller.
8.8. The Seller aims to include up-to-date pictures and specifications of all Goods available for purchase on the Website. However, any pictures and/or descriptions of the Goods may differ from the actual Goods and the Customer acknowledges that images are for illustration purposes only.
8.9. The Seller provides the Website and its contents on an ‘as is’ basis and use of the Website is at the Customer’s own risk. The Seller makes no representation or warranty as to the accuracy, completeness, currency or reliability of the information contained on the Website (including in relation to any Goods for purchase).
8.10. To the extent permitted by law, the Seller will not be liable or responsible in any way (including in negligence) for errors in, or omissions from, the information contained on the Website.
Personal Properties Securities Act 2009 (Cth) (“PPSA”)
9.1. In this clause, “financing statement”, “financing change statement”, “security agreement” and “security interest” have the meaning given to it by the PPSA.
9.2. Upon assenting to these Terms in writing the Customer acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
9.3. The Customer 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 (“PPSR”) established by the PPSA;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii) of these Terms;
b) indemnify and, upon demand, reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;
c) not register a financing change statement on the PPSR 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 on the PPSR in relation to the Goods 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.
9.4. The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
9.5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7. Unless otherwise agreed to in writing by the Seller, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8. The Customer must unconditionally ratify any actions taken by the Seller under clauses 9.3 to 9.5 of these Terms.
9.9. Subject to any express provisions to the contrary (including those contained in this clause 9) nothing in these Terms is intended to have the effect of contracting out of any of the provisions of the PPSA.
Defects, Warranties and Returns and the ACL
10.1. The Customer must inspect the Goods on delivery and must immediately notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or Order. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow the Seller to inspect the Goods.
10.2. If the Customer fails to comply with clause 10.1 of these Terms, the Goods shall be presumed to be free from any defect or damage.
10.3. For defective Goods, the Seller’s liability is limited to:
a) replacing or repairing the Goods (at the discretion of the Seller);
b) where the Customer has acquired the Goods as a consumer within the meaning of the ACL, any remedies available under the ACL.
10.4. The Seller may provide additional guarantees and warranties with the sale of specific Goods, at its discretion.
10.5. The Seller’s Goods also come with guarantees that cannot be excluded under the ACL. If the Customer is a ‘consumer’ within the meaning of the ACL, the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.6. Except as expressly set out in these Terms or as required by law, the Seller makes no warranties or other representations and expressly disclaims all warranties of any kind, whether express or implied, including (without limitation) implied warranties or conditions of merchantability, quality, suitability or fitness for purpose. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.7. Subject to this clause 10, returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 10.1 of these Terms; and
b) the Seller has agreed that the Goods are defective; and
c) the Goods are returned within a reasonable time at the Customer’s cost (or otherwise as agreed between the parties); and
d) the Goods are returned in as close a condition to that in which they were delivered as is reasonably possible.
10.8. Notwithstanding clauses 10.1 to 0 of these Terms, but subject to the ACL, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
a) the Customer failing to properly maintain or store any Goods;
b) the Customer using the Goods for any purpose other than that for which they were designed;
c) the Customer 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 Customer failing to follow any instructions or guidelines provided by the Seller;
e) damage to Goods resulting from any accident, alteration or misuse of Goods after delivery;
f) Customer dissatisfaction with colour, grain, veining or texture of wood, marble and leather;
g) material irregularities or bubbles in glass, since such marks are the evidence of hand crafting; and
h) fair wear and tear, any accident.
10.9. Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of the ACL or any other State or Federal legislation applicable to the sale of goods or services, which cannot be so excluded, restricted or modified.
Intellectual Property
11.1. Where the Seller has designed, drawn or developed Goods for the Customer, 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 by the Customer or another third party without the express written approval of the Seller.
11.2. The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
11.3. The Customer agrees that the Seller may (at no cost) use any documents, designs, drawings or Goods which the Seller has created for the Customer for the purposes of marketing or entry into any competition.
Default and Consequences of Default
12.1. 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 compounded monthly, or the maximum amount permitted by law, whichever is lower.
12.2. The Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering any debt owed by the Customer (including but not limited to internal administration fees, legal costs and bank dishonour fees).
12.3. Further to any other rights or remedies the Seller may have under these Terms, if a Customer has made payment to the Seller and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under these Terms.
12.4. 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 Customer 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;
b) the Customer has exceeded any applicable credit limit provided by the Seller;
c) the Customer licenses or assigns, or purports to license or assign, its rights under these Terms other than in accordance with clause 17.6;
d) the Customer 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
e) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Cancellation
13.1. Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms, the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
13.2. The Seller may cancel any contract to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.3. In the event that the Customer cancels delivery of Goods the Customer shall be liable for:
a) a minimum fee of ten percent (10%) of the Price, provided that manufacture of the Goods has not commenced and that no additional expenditure or expense has been incurred by the Seller; or
b) a minimum fee of fifteen percent (15%) of the Price if cancelled one (1) week after the Seller receives the Order from the Customer; or
c) a minimum fee of forty percent (40%) of the Price if cancelled two (2) weeks after the Seller receives the Order from the Customer; or
d) a minimum fee of sixty percent (60%) of the Price if cancelled three (3) weeks after the Seller receives the Order from the Customer; or
e) any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation, where production of the Goods has commenced.
14.4. Cancellation of Orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an Order has been placed.
Privacy
14.1. The Privacy Act 1988 (“Privacy Act”) applies to the Seller’s collection, use and disclosure of all personal information (as defined in the Privacy Act) in relation to these Terms and includes personal information collected through the Website.
14.2. The Customer 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 Customer in relation to credit provided by the Seller.
14.3. The Customer agrees that the Seller may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
a) to assess an application by the Customer; and/or
b) to notify other credit providers of a default by the Customer; and/or
c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
14.4. The Customer consents to the Seller receiving a consumer credit report to collect overdue payment on commercial credit.
14.5. The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
a) the provision of Goods; and/or
b) analysing, verifying and/or checking the Customer’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 Customer; and/or
d) enabling the collection of amounts outstanding in relation to the Goods.
14.6. The Seller may give personal information about the Customer to a CRB for the following purposes:
a) to obtain a consumer credit report; and/or
b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
14.7. The information given to the CRB may include:
a) the Customer’s personal information as outlined in clause 15.1 of these Terms;
b) the name of the credit provider and that the Seller is a current credit provider to the Customer;
c) whether the credit provider is a licensee;
d) the type of consumer credit;
e) details concerning the Customer’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 Customer 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 Customer has committed a serious credit infringement; and
h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.8. The Customer shall have the right to request (by e-mail) from the Seller:
a) a copy of the information about the Customer 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 Customer for the purpose of direct marketing.
14. 9. The Seller will destroy personal information upon the Customer’s request (by e -mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the Privacy Act.
14.10. The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au.
Service of Notices
15.1. 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.
15.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
Trusts
16.1. If the Customer 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 Customer covenants with the Seller as follows:
a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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 Customer 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 Customer 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.
General
17.1. The laws of the state of Victoria, Australia govern these Terms and the parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and all other courts entitled to hear appeals from those courts.
17.2. The failure by either party to enforce any provision of these Terms 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 shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.3. These Terms and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts of Victoria.
17.4. Subject to clause 10 of these Terms the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these Terms (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.5. The Seller may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
17.6. The Customer cannot licence or assign any rights under these Terms without the written approval of the Seller. For the purpose of this clause, a change of control of ownership of the Customer will be considered to be an assignment.
17.7. 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 Customer 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.
17.8. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with the requirements of the Electronic Transactions Act 2000 (Vic).
17.9. These Terms may be amended by the Seller from time-to-time. The most recent version of these Terms that appear on the Website, or which is otherwise notified to the Customer, will apply to any future Orders submitted by the Customer.
17.10. Time is of the essence in regards to all payment obligations of the Customer under these Terms.
17.11. 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.