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1. Interpretation
In these Terms
1.1 ‘‘CCAA’’ means Commercial Credit Account Application;
1.2 ‘‘Company’’ means DuBois Chemicals Australia Pty Ltd Trading as Prowash Australia ACN 627 425 825 and its successors and assigns;
1.3 ‘’CCA’’ means the Competition and Consumer Act 2010 (Cth);
1.4 ‘‘Contract’’ means the Contract between the Company and the Customer for or in relation to the sale and purchase of Goods;
1.5 “Confidential Information” means information disclosed to the receiving party by the disclosing party, before or after the date of the Contract (or as at the date of any sale, supply or delivery of Goods by the Company) , that is expressly designated at the time of disclosure as confidential and that information is not generally available in the public domain;
1.6 ‘‘Customer’ means the purchaser of Goods from the Company;
1.7 ‘‘Goods’’ means any item or good of any nature which is sold or may be sold by the Company to the Customer from time to time and/or any item or good of any nature delivered by the Company to the Customer from time to time;
1.8 ‘‘GST’’ means the Goods and Services Tax imposed by A New Tax System (Goods and Services Tax) Act 1999;
1.9 ‘‘Parties’’ means the Company and the Customer collectively;
1.10 ‘‘PPSA’’ means the Personal Property Securities Act 2009;
1.11 ‘‘PPSR’’ means the Personal Property Securities Register created under the PPSA;
1.12 ‘‘RGA’’ means Return Goods Authority; and
1.13 ‘‘Terms’’ means these Terms and Conditions of Sale.
2. Application
2.1 These Terms apply to all Contracts for the sale, supply or delivery of Goods by the Company.
2.2 No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed in writing by the Parties.
2.3 The Customer acknowledges that no employee, agent, servant or representative whatsoever of the Company has any right to make any representation, warranty or promise in relation to the Goods or the sale of the Goods other than as specified in these Terms and the Customer agrees that it has not relied on any representation, warranty or promise made by any employee, agent, servant or representative of the Company in relation to the Goods or the sale of the Goods.
3. Pricing
3.1 The Company will provide the Customer with prices at the time of any order.
3.2 It is acknowledged that the Company may at any time, vary or amend the price of Goods.
3.3 The Customer acknowledges that any agreement as to the pricing of Goods under a past order does not bind the Company to offer such pricing to that Customer in relation to any future order.
3.4 The Company reserves the right to vary quoted prices, without notice, in accordance with variations in currency exchange rates, Government taxes and/or charges, import duties, transportation costs and any other cost, tax or charge of a similar nature.
3.5 GST will be added to the nett price at the appropriate rate.
3.6 All Goods are sold ex-warehouse meaning that freight may be arranged for and on behalf of the Customer, if so required, without the Customer incurring any pricing disadvantage on sale or value of the Goods.
3.7 If freight is required pursuant to clause 3.6, , the Parties agree that, as and from the time such Goods leave the warehouse, the Goods are at the Customers risk.
3.8 It is acknowledged that the Company is not under any circumstances assume any liability (howsoever arising) in relation to any transport arranged by the Customer.
3.9 Prices include the cost of packaging, delivery, freight and insurance to the Customers nominated point of collection or delivery only (A courier fee/transport fee and taxes will apply to all orders).
4. Terms of Payment
4.1 Payments shall be remitted directly to the Company (strictly nett) prior to delivery without any deduction or discount save as stated herein or in the relevant invoice or statement or where the Company has granted a credit facility to the Customer.
4.2 Unless otherwise agreed in writing by the Parties, payment shall be made within thirty (30) calendar days.
4.3 Credit card payments are subject to an administration fee. This fee will be waived for any payments made within fourteen (14) calendar days of invoice date.
5. Credit Terms
All Credit sales are made upon the following terms and conditions:
5.1 Credit will only be granted at the sole discretion of the Company, consequent upon the submission of a completed CCAA. The company has the right to amend or vary (at its discretion) any credit facility.
5.2 The Company will assess each request for credit individually and any agreement by the Company to provide credit to a Customer in the past does not bind the Company to offer any future credit.
5.3 All accounts are payable strictly within thirty (30) calendar days from the end of the month, and the Company is at liberty to alter, amend and/or vary such payments conditions as it deems appropriate.
5.4 The Company reserves the right to withdraw the credit facility upon breach of any of the terms and conditions contained herein by the Customer.
5.5 The Customer thereby agrees that upon such withdrawal, any, and all monies owing on the account become due and payable immediately.
5.6 In the event the Customer fails, ignores or neglects to observe the Terms herein, the Company may in its absolute discretion, refuse to supply to the Customer any such Goods and the Company shall not be liable to the Customer for any loss or damage the Customer may incur/sustain as a result of such refusal or any loss or damage in any way connected or related to the Company’s refusal to supply the Customer.
5.7 As a result, the Customer shall be liable to pay the collection costs of any monies outstanding, including the fees and/or costs to any Collection Agency or Solicitor engaged by the Company to recover such monies.
5.8 Interest is payable on all overdue accounts calculated on a daily rate per month from the due date of payment until payment is received in full by the Company.
6. Variation of Design
6.1 The Company reserves the right to, at any time, make such alterations to the specifications, design or construction of the Goods, as the Company shall, at its own discretion, deem fit.
6.2 Where the Company is acting as agent for a manufacturer or supplier (or where the Company does not have control of the product design process), the Company shall not be liable for any alteration or variation of the Goods made by the manufacturer or the supplier.
7. Supply
The Company reserves the right to suspend or discontinue the supply of Goods to the Customer without being obliged to give any reason.
8. Delivery
Availability dates for delivery are estimates only, but the Company will utilise its best endeavours to meet these estimates. The Parties agree that the Company is not to be liable for any loss or damage caused by, or in any way related to, the delivery of Goods or services on a date after the estimated delivery date.
9. Partial/Instalment Deliveries
9.1 The Company reserves the right to deliver any order in whole or by instalments as well as to deliver prior to the date for delivery, and in such an event, the Customer must not decline to accept delivery of the Goods.
9.2 Where the Goods are delivered by instalment, each instalment is sold under a separate Contract subject to these Terms.
9.3 Any failure on the part of the Company to deliver instalments within any specified period does not entitle the Customer to repudiate the Contract with respect to the balance remaining undelivered.
10. Risks and Insurance
10.1 The Goods are entirely at the risk of the Customer from the moment of delivery to the Customer’s point of delivery or point of collection.
10.2 The Customer, must at its own expense, maintain the Goods, and insure them for the benefit of the Company against; fire, theft, breakdown, water and other risks as from the moment of delivery to the Customer and until title in the Goods has passed to the Customer.
11. Charges beyond point of Delivery Quoted
Unless otherwise agreed in writing, the Company prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the Goods, then any such charges shall be to the Customer’s account. The Company reserves the right to nominate the means of delivery.
12. Cancellation
Cancellation of despatched orders is not permitted and refunds will not be issued on orders placed for non-stocked items.
13. Notification of Customer Management Restructure or Changes
The Customer shall notify the Company in writing of any change in the structure, including change of ownership, change of control, management change, change in shareholding and change in partnership or trusteeship within seven (7) days of the date of such change.
14. Trademarks
14.1 Neither the Company's agreement to sell Goods to the Customer nor the supply of Goods to that Customer shall confer any right upon the Customer to use any trade mark of which the Company is the registered holder, and at all times, such trade mark, trade dress and trade names (‘trademarks) remain the sole property of the Company.
14.2 Any use of the Trademarks by the Customer shall be made only with the advertising, promoting or selling of the goods and any such use shall inure to the benefit of the Company and/or its affiliates. In no event shall the Customer 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 confusing similar to any of the Trademarks.
14.3 If the Customer 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 the Company or an affiliate as designated by the Company.
15. Confidential Information and Intellectual Property
15.1 If any of the Company’s Confidential Information and/or other Intellectual Property is supplied to the Customer for any purpose whatsoever, then-
15.1.1 It remains the sole property of the Company;
15.1.2 The Customer acquires no right or interest in or to it other than a non-exclusive, non-assignable licence at no fee to use it solely for the purposes for which it was supplied;
15.1.3 It must not be disclosed by the Customer to any other person, third party or company whatsoever; and
15.1.4 None of it may be used by the Customer in any way which might harm or prejudice the interests of the Company.
15.2 The licence referred to in clause 15.1.2 may be terminated immediately by the Company in writing at any time with or without cause.
15.3 If the licence referred to in clause 15.1.2 is terminated then all the Company’s confidential information and/or intellectual property must immediately be returned to the Company at the expense of the Customer. In that event, all copies and extracts of the confidential information and/or intellectual property, in the Customers possession or control (including electronic or written form) must also be returned to the Company.
16. Liability
16.1 No liability shall be taken upon the Company in the event of the Goods being misused, incorrectly installed or extended for use in any unlawful or criminal activity. Any advice, recommendation, information or assistance or service provided by the Company in relation to the Goods or their use or application is given in good faith and is considered by the Company to be appropriate and reliable.
16.2 The Company is not subject to, and the Customer releases the Company from any liability (including but not limited to consequential loss or damage) arising from any delay in delivery or provision or fault or defect in the goods and/or the services. The Customer acknowledges that the Company is not:
a. responsible if the Goods and/or services do not comply with any applicable safety standard(s) or similar regulation(s); and
b. the Company is not liable for any claim, cost, damage or demand resulting from such non-compliance.
16.3 If any statutory provisions under the CCA or any other statute apply to the Contract between the Company and the Customer then to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited at the Company’s option to:
a. replacement or repair of the Goods or the supply of equivalent Goods; or
b. payment of the cost of replacing or repairing the Goods or of acquiring equivalent Goods; and in either case the Company will not be liable for any consequential loss or damage or other direct or indirect loss or damage.
17. Return of Goods for Credit
17.1 To ensure that returned goods are processed in a timely manner and all approved credits are issued accurately, please follow the steps listed below;
What To Do-
(a) call and advise a customer service team member that you would like to return some Goods to the Company;
(b) give details on the items including; quantities and the reason for return;
(c) if the Goods are approved, the Company will complete the RGA form and issue a unique RGA number which is valid for fifteen (15) days;
(d) once you have received the form (via email, post or with your replacement goods) keep a copy for your records and send a copy back with the goods you are returning;
(e) mark the box clearly with your unique RGA Number; and
(f) ship to Prowash Australia, 13 – 15 Flight Drive, Tullamarine VIC 3043.
17.2 If you require assistance to return the Goods, please call (03) 8340 3200, and a customer service team member will be happy to guide you through this process.
17.3 Transport charges are the responsibility of the Customer, except where the Company advises the Customer that it is to assume responsibility for the return (including for the transport charges). When returning Goods to the Company, it is the sender’s responsibility to pack the Goods correctly to prevent damage during transit. Any items lost or damaged in transit are the sender’s responsibility and a credit is not guaranteed.
17.4 Once your Goods have been received, matched to your RGA number and processed in our system, the Goods will be assessed. During this assessment a Company team member may call you to discuss the reason for return, i.e. if the item is faulty or has been returned for a repair we may require further information.
17.5 Where Goods have been returned because they were incorrectly sent, incorrectly ordered, not suitable or deemed faulty, a full credit may be considered. In such instance, the Goods MUST not have been used, and MUST still be in the original packaging. Where they are deemed not to be faulty e.g. through misuse or damage, the Company will assess the item and repair if possible. In such case, the customer shall NOT receive a credit for the item and may incur the cost of repairs. Special or custom made orders will be considered on a case-by-case basis.
17.6 The Company reserves the right to inspect all Goods before issuing a credit and charge a 20% restocking fee if applicable.
17.7 No freight charges are to be charged to the Company unless prior arrangement has been made in writing to the Company’s authorised personnel.
18. Return of Goods for Repair/Warranty Claims
The Company reserves the right to repair all Goods returned in the first instance. If the Goods are damaged or tampered with in any way no warranty will be given and a charge may apply for the repair of the Goods. The Customer shall be responsible for arranging transportation and for payment of any transportation costs in relation transportation of returned Goods to and from the Company’s premises. No liability is taken if the Goods are lost or stolen in transit.
19. Warranty
19.1 All Goods purchased/supplied are covered by such warranties as are specified by the Company’s manufacturer and warranty policy and supplied subject to the product standards detailed by the manufacturer.
19.2 On discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect, with proof of purchase accompanying the Goods subject to a warranty claim. The Customer must not carry out any remedial work to the alleged defective Goods without first obtaining the written consent of the Company to do so.
19.3 All repairs to Goods shall also carry a warranty against workmanship but not parts used. Any repairs carried out by an unauthorised representative/company render the warranty VOID.
19.4 Any Goods sold by the Company that are not manufactured by or installed by the Company shall only be covered by the original manufacturers warranty and at their absolute discretion (Refer to Clause 18).
19.5 Nothing in this Contract shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this Contract of all or any of the provisions the CCA or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
19.6 The Customer expressly acknowledges and agrees that it has not relied upon and the Company is not liable for any advice given or representations made by the Company, its employees, agents, servants or representatives whatsoever in relation to the suitability for any purposes of the Goods.
20. Personal Property Securities Act 2009
20.1 If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.
20.2 The Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the PPSA and creates a security interest in all goods that have previously been supplied and that will be supplied in future by the Company to the Customer (including, if applicable, a purchase money security interest (PMSI)). The Customer acknowledges and agrees that the Company may apply to register any security interest in the Goods at any time before or after delivery of the Goods. The Customer waives its rights under section 157 of the PPSA to receive notice of any verification of the registration.
20.3 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 Company may reasonably require to-
(i) register a financing statement or financing change statement in relation to a security interest on 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 14.3 (a) (i) and 14.3 (a) (ii).
(b) indemnify and upon demand reimburse, the Company for all expenses incurred in registering financing statement or financing change statement or security interest on the PPSR established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest between the Parties without the prior written consent of the Company;
(d) not register or permit to be registered a financing statement or a financing change statement in relation to Goods in favour of a third party without the prior written consent of the Company; and
(e) immediately advise the Company 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.
20.4 The Company and the customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
20.5 The Customer waives their rights to receive notices under sections 95, 118, 121 (4), 125, 130, 132 (3) (d), 132 (4), 135, 142 and 143 of the PPSA.
20.6 The Customer waives their rights as a guarantor and/or debtor under section 142 and 143 of the PPSA.
20.7 The Customer must unconditionally ratify any actions taken by the Company under clause 21.3 to 21.5.
20.8 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
21. Force Majeure
21.1 The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to; any act of God, war, riots, strike, lock out, explosion, industrial dispute, raw material shortage, breakdown of plant, fires, transport or equipment failures, Government action, or any other cause whatsoever, whether or not of a like nature to those specified above, beyond the reasonable control of the Company).
21.2 The Company may, in its absolute discretion give notice of such cause to the Customer whereupon the Company is discharged from undertaking such performance or observance to the extent of such prevention, restriction or affectation.
22. Entire Contract
The Terms of the Contract between the Parties are wholly contained in these Terms and any other writings signed by both Parties from time to time.
23. Waiver of Breach
No failure by the Company to insist on strict performance of any of these terms is a waiver of any right of remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.
24. Assignment
The Customer may neither assign the Contract, nor any rights subsisting under the said Contract without the prior written consent of the Company, which is at the Company’s absolute discretion.
25. Severability
If any provision contained in these Terms is held by a Court of competent jurisdiction to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.
26. Governing Law and Jurisdiction
The Governing law of any Contract for supply of Goods by the Company shall be the Law applicable in the State of Victoria and the customer agrees to submit to the non exclusive jurisdiction of the Courts of the State of Victoria and courts of appeal therefrom for all purposes of or in connection with such Contracts.