Terms & Conditions
These terms shall apply to all products provided by KarChargers to the customer. Any order or instructions received by KarChargers from the customer for the supply of products shall be deemed to incorporate these terms and will constitute acceptance of these terms.
Defined terms: in these terms unless the context otherwise requires, the following words have the following meanings:
· Agreement: means the agreement between the parties for the provision of Products which agreement shall comprise the terms and any other written agreement between the parties setting out the termsof supply.
· KarChargers: means The Trustee of KarChargers Family Trust ABN number 27 838 769 316.
· Customer: means the person or entity acquiring products from KarChargers.
· Products: means the electrical car chargers and accessories supplied or to be supplied from time to time by KarChargers to the customer.
· GST: means goods and services tax payable at the applicable rate in accordance with the goods and services tax act 1985.
· Parties: mean KarChargers and the customer.
· PPSA: means the personal property securities act 1999.
· Terms: means these terms of trade.
· PPSA terminology: words in these terms which are defined in the ppsa, have the same meanings asin the ppsa respectively unless the context otherwise requires.
2.1 The customer acknowledges and agrees that by requesting KarChargers to provide products,whether by completion of any order form, acceptance of any quote or otherwise,the customer is offering to purchase those products and agrees to and accepts these terms. all orders are subject to acceptance by KarChargers.
2.2 Products are supplied by KarChargers to the customer only on the terms set out in these terms and any variations specifically agreed to by KarChargers in writing. KarChargers shall not be bound by any terms to the contrary set out in the customer’s order elsewhere which purport to override these terms.
2.3 KarChargers reserves the right to specify a minimum order value which KarChargers shall accept from time to time and to impose a surcharge should the customer require delivery of products having a value less than the minimum order value.
2.4 KarChargers may, before KarChargers accepts an order from the customer, require the customer to procure a guarantee from a director or shareholder of the customer or any other person, on such terms as KarChargers may reasonably require.
3.1 The price payable by the customer for the products shall be the price in KarChargers’s price list current at the date of the customer’s order or, as otherwise agreed in writing between the parties.
3.2 The customer shall pay all gst, taxes and levies on and in respect of the products.
3.3 The price of the products excludes any installation, testing and compliance procedures which will be payable in addition to the price.
3.4 KarChargers reserves the right to increase the price of the products at any time.
4.1 Unless KarChargers otherwise agrees in writing, customer orders are to be accompanied by a 50% deposit to the KarChargers bank account as denoted on the quotation or invoice. Payment of the remaining balance outstanding is to be made in full on the date of delivery of the products, to the customer.
4.2 The customer may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to KarChargers.
4.3 If full payment for the products is not made to KarChargers by the due dates for payment, KarChargersmay, at KarChargers’s discretion (and without affecting any other rights KarChargersmay have), require the customer to pay, on demand, default interest on any amount outstanding at the rate of 5% per annum above the current overdraft rate charged by KarChargers’s bankers. Default interest will accrue on a daily basis from the date when payment is due until the date when payment is actually made. The customer will also be liable to pay all expenses and costs (including legal costs as between solicitor and client) in connection with KarChargers recovering or attempting to recover any overdue amount from the customer
4.4 KarChargers, as per clause 4.1, requires payment of a deposit by the customer prior to ordering or supplying products. Deposits are non-refundable
4.5 KarChargers may, in its discretion, require payment in full from the customer prior to ordering or supply products to the customer. Payments made in advance are non-refundable.
4.6 KarChargers has the absolute right to terminate any credit arrangements with the customer and to substitute cash-on-delivery payment terms at any time, without prior notice or reason being given.
4.7 Notwithstanding anything contained in these terms or any other written agreement between KarChargersand the customer, all payments (whether due or not), shall become immediately due to KarChargers if:
(a) the customer fails to comply with the terms; or
(b) the customer commits an act of bankruptcy; or
(c) the customer enters into an arrangement or composition with its creditors;
(d) the customer does anything that would make it liable to be put into liquidation;
(e) a resolution is passed or an application is made for the liquidation of the customer;
(f) a receiver or statutory or official manager, or a person in a similar position,is appointed over all or part of the customer’s assets and undertaking; or
(g) any act of insolvency is committed.
4.8 The customeragrees that all payments made by the customer to KarChargers may be applied by KarChargersto obligations owing by the customer to KarChargers in any manner as KarChargerssees fit.
4.9 The customer and KarChargersagree that the terms of supply on which products are supplied by KarChargers tothe customer are confidential and that except as required by the ppsa neither KarChargersnor the customer will disclose those individual prices or other terms ofsupply.
5.1 KarChargers will arrange the delivery of the products to the customer.
5.2 KarChargers charges freight on all orders unless otherwise agreed. Freight will be charged at the cost to KarChargers by the freight transport contractor. Products will be delivered to the customer by the usual methods of delivery used by KarChargers.KarChargers may, at the customer’s request, agree to arrange delivery by other methods but will be entitled to charge the customer for any additional costs KarChargers may incur.
5.3 KarChargers will in no event be liable for any late or non-delivery.
5.4 Delivery will be made or deemed to have been made when the products arrive at the delivery point agreed with the customer.
5.5 All claims for products damaged in transit must be made within 7 days of delivery.
5.6 Any time or date for delivery given by KarChargers is only an estimate and KarChargers shall not be liable for the direct or indirect consequences of a delay however arising. The customer acknowledges that KarChargers will not accept any liability for any claims or losses (direct or indirect) arising from its failure to meet the delivery date (if any).
5.7 KarChargers reserves the right to make deliveries in instalments, in which event each instalment will be a separate contract on these terms.
6.1 The products will be at the customer’s risk immediately on delivery. The customer will ensure the products at full replacement value until legal and beneficial ownership of them has passed to the customer. If the products are damaged or destroyed before legal and beneficial ownership of them has passed to the customer, the customer will hold the proceeds of such insurance in a separate fund and on trust for KarChargers.
6.2 Until legal and beneficial ownership of the products has passed to the customer, or the products have been sold or otherwise disposed of, the customer will store the products separately from other goods.
6.3 If the products have been sold or otherwise disposed of, then the customer will be accountable to KarChargers for payment of the purchase price of those products sold and will hold an equivalent amount from the sale proceeds in a separate fund, on trust for KarChargers.
7. Authorised returns
7.1 If KarChargersdelivers the incorrect products or products in excess of the quantity ordered by the customer, the customer may return the incorrect products or the products in excess of quantity ordered, to KarChargers, at KarChargers’s cost, if such products are returned within 14 days of delivery by a carrier nominated by KarChargers.All returned products must be in their original packaging in a resalable condition with the following information:
The customer’s name, address and account number; and
The KarChargers invoice number.
8. ConsumerGuarantees Act and Liability
8.1 If the customer acquires the products for business purposes, the consumer guarantees act 1993(for the purposes of clauses 9.1 and 9.2, “the act”) will not apply.
8.2 If the customer is a consumer under the act, to the extent that the customer’s rights under the act have not been excluded under clause 8.1, nothing in these terms will affect the rights of the customer under the act.
8.3 Subject to clause 8.2:
(a) The customer relies upon its own knowledge, skill and judgement in relation to the particular use or suitability of the products for the customer’s purpose.
(b) All warranties, descriptions, representations or conditions whether implied by the sale of goods act 1908 or otherwise or contained in any document not furnished by KarChargers expressly excluded to the fullest extent permitted by law.
(c) KarChargers will accept no liability for any damages or losses arising from a consequence of any act, default or negligence on the part of KarChargers or of an employee, agent or contractor of KarChargers.
(d) insofar as KarChargersmay be liable, notwithstanding clause 8.3(b), for any loss, damage or injury arising directly or indirectly from any defect in the products, the total liability of KarChargers, whether in tort, contract or otherwise, will be limited to the lesser of the price of the products complained of, the cost of repairing or replacing the products and the actual loss or damage suffered by the customer.
(e) KarChargers will not be liable in any event for any consequential, indirect or damage, loss or injury of any kind suffered by the customer.
8.4 The customer shall use its best endeavours to minimise loss and damage arising from any alleged breach of the terms by KarChargers.
9. Intellectual Property Rights
9.1 The sale of any products by KarChargers to the customer does not give the customer the right to use, sell, disseminate or duplicate any of KarChargers’s trademarks, copyrights, designs or other intellectual property rights (unless agreed otherwise by KarChargers in writing).
10.1 The customer agrees to fully indemnifyKarChargers for, and on-demand pay KarChargers, all costs (including costs calculated on a lawyer and own client basis), losses, damages, expenses and claims incurred or which KarChargers is or becomes liable for as a consequence of or in connection with:
(a) the customers failure to comply with or breach of any of its obligations and/or warranties under the agreement; and
(b) any claim or legal proceedings the customer or any other person brings against KarChargersor any person acting as KarChargers’s agent in the exercise of the KarChargers’srights under the agreement; and
(c) anything done or not done in good faith in the exercise or attempted exercise by KarChargersof its rights under the agreement; and
(d) any amount that the customer fails to pay on the due date for payment; and
(e) the exercise, enforcement, preservation or attempted exercise, enforcement or preservation of any of KarChargers’s rights under the agreement, or in suing for and recovering any moneys that the customer owes or is liable to pay to KarChargers or indemnify KarChargers for; and
(f) taking any actions or doing any things (including paying or incurring liabilities to pay any moneys) to protect or preserve KarChargers’s rights under the agreement, including the security interest granted to KarChargers pursuant to the agreement.
(g) in all cases on a full indemnity basis.
11. AccountSuspension and Closure
11.1 Without prejudice to any other rights that KarChargers may have, KarChargers may suspend a customer’s account if payment for the products is not made on the due date. An accounts suspension may cause all unfulfilled orders from the customer to be cancelled.
11.2 KarChargers may close a customer account at any time for any reason whatsoever, including without limitation, where:
(a) any of these terms are not observed; or
(b) the customer has on more than 3 previous occasions in any 12 month period failed to make payments required in accordance with these terms, notwithstanding that the most recent invoice was paid on the due date,
andKarChargers shall not be liable to the customer for any loss or damage, which may result directly or indirectly from the closure of suchaccount.
12. PersonalProperty Securities Act 1999
12.1 The customer grants KarChargersa security interest in the products and their proceeds to secure the obligations and liabilities of the customer under these terms. If any of the products and/or their proceeds are not readily identifiable and/or traceable, the customer grants KarChargers a security interest in all of the customer’s property of which the products form part.
12.2 Property and ownership in the productsremains with KarChargers and will not pass to the customer until KarChargersreceives payment in full of the invoice relating to the relevant goods.
12.3 As and when required by KarChargers,the customer will, at its own expense, provide all reasonable assistance and all relevant information to enable KarChargers to register its security interest, maintain such registration, and enforce its rights pursuant to its security interest.
12.4 The customer will not change its name without giving KarChargers 7 day’s prior written notice.
12.5 The customer irrevocably authorisesKarChargers, its agents and employees, to search for and remove the products (and if anyproducts are wholly or partially attached to or incorporated in any other goods, sever or disconnect the products from those other goods) and for thatpurpose to enter into any premises where they may be found using such force as is necessary. the customer will indemnify KarChargers against any costs and liabilities that may arise directly or indirectly as a result of the entry by KarChargers, its agents or employees into any premises or the seizure by KarChargers of any products (or the severing or disconnection of such products from other goods) under this clause.
12.6 The customer waives its right to:
(a) Receive a statement of account pursuant to s116 of the ppsa;
(b) Receive notice of KarChargers’s proposal to retain collateral under s120(2) of the ppsa and to object to that proposal under s121 of the ppsa;
(c) Receive notice from KarChargers under s114(1)(a) of the ppsa that KarChargers intends to sell certain products in which it has a security interest;
(d) not have products damaged if KarChargers removes an accession under s125 of the ppsa;
(e) to receive notice of the removal of an accession under s129 of the ppsa;
(f) to apply to the court for an order concerning the removal of an accession under s131 of the ppsa; and
(g) to reinstate a security agreement under s133 and/or 134 of the ppsa.
13. Default and Enforcement Rights
13.1 If the customer fails to pay any amount owing on the due date or commits any other default under the agreement and any such default continues for seven days, or any of the events set out in clause 4.7 occur or KarChargers in its absolute discretion forms the opinion that the customer cannot or will not be able to pay its debts to KarChargers as they fall due (each of such to be a default event), then:
(a) KarChargersshall be entitled to refuse to provide any further products to the customer;
(b) KarChargers may exercise any or all of its rights pursuant to any security interest it has;
(c) KarChargers may require the customer, at its expense, to promptly return to KarChargers allproducts supplied by KarChargers which have not been fully paid for; and
(d) KarChargers may by written notice to the customer cancel the agreement;
and any rights exercised by KarChargers pursuant to this clause shall not in any way limit the customer’s liabilities under the agreement including without limitation the customer’s obligations and liabilities pursuant to the indemnities contained in the agreement and/or to pay damages for any breach nor preclude KarChargers from exercising any other right or remedy (in equity or in law) that may be available to it.
14 Exercise of Rights:
14.1 The following provisions apply to the exercise of KarChargers’s rights under the agreement:
(a) KarChargers may exercise a right under the agreement alone, or at the same time as exercising any other rights, powers or remedies available to KarChargers.
(b) KarChargers does not need to notify the customer or any other person first before KarChargers exercises any rights (unless provided otherwise in the agreement or by law).
(c) any delay by KarChargersin exercising any of its rights will not affect the subsequent exercise of anyother rights.
(d) KarChargerswill not be liable or accountable to the customer or any other person for any loss caused by:
i. the exercise or attempted exercise of any of KarChargers’s rights; or
ii. a failure by KarChargers to exercise, or any delay in exercising, any of KarChargers’srights; or
iii. the manner in which KarChargers exercises any of its rights;
whether or not resulting from a mistake or error of judgment.
15 PrivacyAct 1993
15.1 KarChargers will hold any personal information received from the customer for marketing, product development, account administration and credit purposes. KarChargers may disclose personal information about the customer to any person the customer names as a credit referee or to any person for the purpose of securing KarChargers’ssecurity interest granted pursuant to these terms. Failure by the customer to supply personal information for these purposes entitles KarChargersto withdraw or refuse credit to the customer and to repossess any products in the possession or control of the customer.
16.1 Severance: if any clause or part of a clause of these terms is held to be invalid or unenforceable for whatever reason, to the extent not inconsistent with that invalid clause, the remaining provisions shall remain in full force and effect.
16.2 Entire agreement: the agreement constitutes the entire agreement of the parties in respect of the products and replaces any previous agreements and understandings and will prevail over anyexisting or subsequent terms and conditions set out in any document (including any customer purchase order), unless agreed otherwise in writing by KarChargers.
16.3 Waiver: no waiver of any breach of, or failure to enforce any provision of, the terms at any time by any party will in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the terms.
16.4 Force majeure: KarChargers shall not be liable for any delay in performing its obligations due in whole or in part by force majeure which shall include (but not be limited to) an act of god, weather conditions, natural disasters, strikes, lockouts, fire, war, suit, civil commotion, inability to obtain goods, services or supplies including the imposition of any export or import bans or any other cause beyond the reasonable control of KarChargers.
16.5 Amendment: KarChargers may amendthese terms, from time to time, by notice to the customer.
16.6 Joint and several: if the customer comprises more than one person, then each of them shall be jointly and severally liable for the obligations and liabilities of the customer under these terms.
16.7 Assignment: the customer is not entitled to assign, transfer or otherwise dispose of any of its rights or obligations under these terms without KarChargers’s prior written consent. KarChargers shall be entitled to assign, transfer or dispose of any or all of its rights and obligations under these terms without the prior consent of the customer.
16.8 Notice: unless agreed otherwise in writing, all notices under the agreement shall be served in writing to thelast known address of the parties.
16.9 Errors and omissions: errors and omissions of a clerical nature in quotations, invoices or statements shall be subject to correction.
16.10 Legislation: a reference to any legislation or to any provision of any legislation (including regulations and orders)includes that legislation or provision as from time to time amended, re-enactedor substituted and any statutory instruments, regulations and orders issuedunder any such legislation or provision.
16.11 Governing law: the agreement shall be governed by, and construed in accordance with, the laws of Australia.