Aspect Furniture Pty Ltd - ACN 146 316 770 (Aspect).
Buyer means the purchaser of any goods specified on a purchaser order to Aspect.
Goods means products and/or services on a purchase order from Buyer to Aspect.
GST means Goods and Services Tax in Australia.
PPSA means the Personal Properties Securities Act 2009.
Security Interest and "purchase money security interest", and "attached" and all related terms have the meanings given them by the PPSA.
(a) These Terms and Conditions of trade (Terms and Conditions) apply to all sales of Goods by Aspect to Buyer (including any sale to which a quotation relates) and supersede any other terms of trade.
(b) Aspect may change these Terms and Conditions anytime at its own discretion
3. Pricing and Delivery
(a) The prices and product specifications contained in Aspect's price list are subject to change anytime at the discretion of Aspect and without notice to Buyer. All references to dollar or $ are to Australian dollars unless expressly written otherwise.
(b) Delivery of Products and services shall be deemed complete when Aspect gives possession of the Project(s) directly to Buyer or Buyer's designee or possession of the products is given to a carrier, courier or other bailee for purpose of delivery to Buyer or its designee.
(c) The Buyer agrees that the delivery docket signed by Buyer or Buyers agent shall be conclusive evidence of delivery.
(d) When Aspect provides a quotation for goods unless otherwise agreed in writing that quotation shall be valid for thirty (30) days from the date of issue unless extended or withdrawn earlier by Aspect in writing.
(a) An order for Goods constitutes an offer to purchase the Goods by Buyer subject to these Terms and Conditions.
(b) Orders accepted by Aspect may not be cancelled or altered in whole or in part without Aspect's written consent. Aspect may at its absolute discretion decline any order from Buyer either in whole or in part.
(c) In placing any order Buyer expressly represents that Buyer:
(i) is solvent; and
(ii) has not committed an act of bankruptcy; and
(iii) knows of no circumstances which would entitle any creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate Buyer or exercise any other rights over or against Buyers' assets.
5. Terms of Payment
(a) All invoices are due and payable in full within fourteen (14) days of the date of Aspect's Invoice (the "due date").
(b) Should Buyer fail to pay Aspect's invoices by the due date:
(i) Aspect may charge interest on any overdue amount at the then current Aust Federal Reserve "Cash" Rate plus five (5) percent calculated and payable daily, compounded from the due date until the invoice is paid in full, and;
(ii) Buyer shall pay all of Aspect's costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from Buyer.
(c) Aspect may set off any amount owed by Aspect to Buyer from any amount due by Buyer to Aspect.
All prices will be quoted exclusive of GST. However, all goods will be sold on a 'plus GST (if any)' basis.
(a) Goods are guaranteed against defects in material or workmanship subject to fair and proper usage.
(b) Buyer shall immediately notify Aspect in writing of any defect in Goods supplied.
(c) Nothing in these Terms and Conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other Australian laws which cannot be modified or excluded. Except as expressly set out in these Terms and Conditions and as required by the Australian Consumer Law, Aspect makes no warranties or other representations to Buyer. Aspect's liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law. Any warranties made by Aspect to the ultimate consumer of the Goods is solely for the benefit of the Consumer, and no Buyer purchasing goods for resale shall be entitled to bring claims under any such warranties.
(d) Without limiting the above clauses:
(i) To the extent permitted by statute, the liability, if any, of Aspect arising from the breach of any implied conditions or warranties,
(ii) or failure to comply with a statutory guarantee under the Australian Consumer Law, in relation to the supply of Goods, shall at Aspect's option be limited toLa)the replacement of the Goods or resupply of the Goods, or the cost of replacement or resupply of the Goods; (b) refund of the Purchase Price; or (c)the repair of the Goods, or the cost of repair of the Goods.
(e) All warranty related enquiries or claims must be directed to: firstname.lastname@example.org
8. Other Claims
(a) Any claims by Buyer for short or wrongful delivery of the Goods must be notified to Aspect in writing within seven (7) days after delivery of Goods to Buyer and any claim which Buyer does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
(b) Any claims by Buyer associated with trade promotions in relation to Aspect's products must be made in writing within 3 months of completion of the trade promotion and must be accompanied by copies of all documents that are necessary to justify Buyer's claim.
(c) Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within the prescribed time periods provided by law.
9. Return of Goods
(a) Aspect will not accept returns for credit, other than defective Goods and warranty claims for which a credit or refund is required by law, without prior authorization.
(b) Any Goods which Buyer returns for credit, other than defective Goods and warranty claims will only be accepted if they are in the original packaging and in as new saleable order and condition.
(c) Aspect reserves the right, except for credits for defective Goods, to charge a handling fee equal to 10% of the credit value (plus GST) and to deduct this fee from the credit amount.
10. Performance and Representations
Buyer acknowledges that Aspect (or any agent) has made any representation or undertaking which is not expressly set out in writing whether as to the fitness of the Goods for any particular purpose or any other matter.
11. Default in Payment
Aspect will treat any default by Buyer in payment of any monies due to Aspect as a breach of these Terms and Conditions. Aspect reserves the right thereupon to cease work on the relevant order and all other orders placed by Buyer and hold all Buyer's work until the due payment or payments on all moneys owed are made. Recurring payments default may, at Aspect's discretion, lead to Buyer's account with Aspect being closed and any further order placed by Buyer and accepted by Aspect will only be processed when prepaid at Aspect's absolute discretion.
12. Intellectual Property Rights
The Buyer warrants that any design or instruction furnished to Aspect shall not be such as will cause Aspect to infringe any intellectual property rights (including patents, registered designs, trademarks, copyright, confidential information and the like) in the execution of Buyer's order and Buyer agrees to indemnify Aspect against any infringement or unauthorised use of the intellectual property rights arising out of the manufacture or use of the Goods and it is especially agreed that the sale and purchase of Goods does not confer on Buyer any licence or rights under any intellectual property rights which is the property of Aspect. Buyer acknowledges and agrees that Aspect and/or its affiliates are the sole and exclusive owners of all trademarks, trade dress and trade names used by Aspect and its affiliates in connection with the Goods and any local language variants thereof (Trademarks). Any use of the Trademarks by Buyer shall be made only with Aspect's prior written approval and solely in connection with the advertising, promoting or selling of the Goods and any such use shall inure to the benefit of Company and/or its affiliates. In no event shall Buyer or its affiliates file any application to register a trademark or a domain name or use any trademark, domain name, business name or trade style that incorporates or is confusingly similar to any of the Trademarks. If Buyer files any application of any kind that incorporates or is confusingly similar to any Trademark, it shall immediately transfer such application or any rights derived therefrom to Aspect or as directed by Aspect.
13. Personal Properties Securities Act 2009
(a) The Buyer hereby acknowledges that these Terms and Conditions constitute a security agreement which creates a security interest in favour of Aspect in all Goods previously supplied by Aspect to Buyer (if any) and all after acquired Goods supplied by Aspect to Buyer (or for Buyer's account) to secure Buyer's payment obligations to Aspect from time to time and at any time, including future advances. The Buyer agrees to grant a "Purchase Money Security Interest" to Aspect.
(b) The Buyer acknowledges and agrees that by assenting to these terms Buyer grants a security interest (by virtue of the retention of title clause in these Terms and Conditions) to Aspect and all Goods previously supplied by Aspect to Buyer (or for Buyer's account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in Buyer's purchase order.
(c) The Buyer undertakes to:
(i) sign any further documents and/or provide any further information (which information Buyer warrants to be complete, accurate and up-to-date in all respects) which Aspect may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
(ii) not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of Aspect;
(iii) give Aspect not less than 14 days' written notice of any proposed change in Buyer's name and/or any other changes in Buyer's details (including by not limited to changes in Buyer's address, facsimile number, email address, trading name or business practice);
(iv) pay all costs incurred by Aspect in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions including executing subordination agreements;
(v) be responsible for the full costs incurred by Aspect (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA;
(vi) give Aspect free and immediate access to its premises or places within its control to enable Aspect to enforce its Security Interests; and
(vii) procure, immediately upon request by Aspect from any persons considered by Aspect to be relevant to its security position, such agreement and waivers as Aspect may at any time require; and
(viii) Buyer waives any rights it may have under sections 115 of the PPSA upon enforcement.
(d) Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by Aspect, Buyer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
(e) The Buyer agrees that immediately on request by Aspect Buyer will procure from any persons considered by Aspect to be relevant to its security position such agreement and waivers as Aspect may at any time require.
14. Security Interest
The Buyer gives Aspect a Security Interest in all of Buyer's present and after-acquired property in which Goods or materials supplied or financed by Aspect have been attached or incorporated.
15. Privacy and Data Collection
Any notice to be given by Buyer to Aspect must be in writing and shall be sent to Aspect's address which is set out on page 1 of this document, until notified in writing otherwise.
17. Waiver and Severance
Failure by Aspect to insist on full performance of any portion of these Terms and Conditions shall not be deemed a waiver thereof or of any rights of Aspect. The parties also agree that if any provision of these Terms and Conditions is determined to be void by any court, then such determination shall not affect any other provision and all other provisions shall remain in full force and effect.
18. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of New South Wales, Australia. The Buyer and Aspect agree to submit to the non-exclusive jurisdiction of New South Wales and the Federal Court of Australia.
19. Entire Agreement
These Terms and Conditions contain all the terms of the agreement between the parties and supersede all prior discussions and arrangements. In the event that there is any conflict between the provisions of these Terms and Conditions and the provisions of a Purchase Order or any record of any other agreement that Aspect may have with Buyer, then the provisions of these Terms and Conditions shall prevail. The only exception to the foregoing will be a signed Trading Terms agreement (if applicable).