Terms & Conditions
These terms shall apply to all products provided by KarChargers tothe customer. Any order or instructions received by KarChargers fromthe customer for the supply of products shall be deemed to incorporate theseterms and will constitute acceptance of these terms.
Defined terms: in these terms unless the context otherwiserequires, the following words have the following meanings:
· Agreement: means the agreement betweenthe parties for the provision of Products which agreement shall comprise theseterms and any other written agreement between the parties setting out the termsof supply.
· KarChargers: means The Trustee ofKarChargers Family TrustABN number 27 838 769 316.
· Customer: means the person or entityacquiring products from KarChargers.
· Products: means the electrical carchargers and accessories supplied or to be supplied from time to time by KarChargersto the customer.
· GST: means goods and services taxpayable at the applicable rate in accordance with the goods and services taxact 1985.
· Parties: mean KarChargers and thecustomer.
· PPSA: means the personal propertysecurities 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 customeracknowledges 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 acceptsthese terms. all orders are subject to acceptance by KarChargers.
2.2 Products are suppliedby KarChargers to the customer only on the terms set out in these terms and anyvariations specifically agreed to by KarChargers in writing. KarChargers shallnot be bound by any terms to the contrary set out in the customer’s order orelsewhere which purport to override these terms.
2.3 KarChargers reservesthe right to specify a minimum order value which KarChargers shall accept fromtime to time and to impose a surcharge should the customer require delivery ofproducts having a value less than the minimum order value.
2.4 KarChargers may,before KarChargers accepts an order from the customer, require the customer toprocure a guarantee from a director or shareholder of the customer or any otherperson, on such terms as KarChargers may reasonably require.
3.1 The price payable bythe customer for the products shall be the price in KarChargers’s price listcurrent at the date of the customer’s order or, as otherwise agreed in writingbetween the parties.
3.2 The customershall pay all gst, taxes and levies on and in respect of the products.
3.3 The price ofthe products excludes any installation, testing and compliance procedures whichwill be payable in addition to the price.
3.4 KarChargersreserves the right to increase the price of the products at any time.
4.1 Unless KarChargersotherwise 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 fullon the date of delivery of the products, to the customer.
4.2 The customer may notdeduct or withhold any amount (whether by way of set-off, counterclaim orotherwise) from any money owing to KarChargers.
4.3 If full payment forthe 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 anyamount outstanding at the rate of 5% per annum above the current overdraft ratecharged by KarChargers’s bankers. Default interest will accrue on adaily basis from the date when payment is due until the date when payment isactually made. The customer will also be liable to pay all expensesand costs (including legal costs as between solicitor and client) in connectionwith KarChargers recovering or attempting to recover any overdue amount fromthe customer
4.4 KarChargers, asper clause 4.1, requires payment of a deposit by the customer prior to orderingor supplying products. Deposits are non-refundable
4.5 KarChargersmay, in its discretion, require payment in full from the customer prior toordering or supply products to the customer. Payments made in advance arenon-refundable.
4.6 KarChargers hasthe absolute right to terminate any credit arrangements with the customer andto substitute cash-on-delivery payment terms at any time, without prior noticeor reason being given.
4.7 Notwithstandinganything contained in these terms or any other written agreement between KarChargersand the customer, all payments (whether due or not), shall become immediatelydue to KarChargers if:
(a) thecustomer fails to comply with the terms; or
(b) thecustomer commits an act of bankruptcy; or
(c) the customerenters into an arrangement or composition with its creditors;
(d) the customerdoes anything that would make it liable to be put into liquidation;
(e) a resolution ispassed or an application is made for the liquidation of the customer;
(f) areceiver 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) anyact 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 KarChargerswill arrange the delivery of the products to the customer.
5.2 KarChargers chargesfreight on all orders unless otherwise agreed. Freight will be charged atthe cost to KarChargers by the freight transport contractor. Products will bedelivered to the customer by the usual methods of delivery used by KarChargers.KarChargers may, at the customer’s request, agree to arrange delivery by othermethods but will be entitled to charge the customer for any additional costs KarChargersmay incur.
5.3 KarChargerswill in no event be liable for any late or non-delivery.
5.4 Delivery willbe made or deemed to have been made when the products arrive at the deliverypoint agreed with the customer.
5.5 All claims forproducts damaged in transit must be made within 7 days of delivery.
5.6 Any time ordate for delivery given by KarChargers is only an estimate and KarChargersshall not be liable for the direct or indirect consequences of a delay howeverarising. The customer acknowledges that KarChargers will not acceptany liability for any claims or losses (direct or indirect) arising from itsfailure to meet the delivery date (if any).
5.7 KarChargers reservesthe right to make deliveries in instalments, in which event each instalmentwill be a separate contract on these terms.
6.1 The productswill be at the customer’s risk immediately on delivery. The customer willinsure the products at full replacement value until legal and beneficialownership of them has passed to the customer. If the products aredamaged or destroyed before legal and beneficial ownership of them has passedto the customer, the customer will hold the proceeds of such insurance in aseparate fund and on trust for KarChargers.
6.2 Until legal andbeneficial ownership of the products has passed to the customer, or theproducts have been sold or otherwise disposed of, the customer will store theproducts separately from other goods.
6.3 If the products havebeen sold or otherwise disposed of, then the customer will be accountable to KarChargersfor payment of the purchase price of those products sold and will hold anequivalent amount from the sale proceeds in a separate fund, on trust for KarChargers.
7.1 If KarChargersdelivers the incorrect products or products in excess of the quantity orderedby the customer, the customer may return the incorrect products or the productsin excess of quantity ordered, to KarChargers, at KarChargers’s cost, if suchproducts are returned within 14 days of delivery by a carrier nominated by KarChargers.All returned products must be in their original packaging in a resalablecondition 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 customeracquires 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 aconsumer under the act, to the extent that the customer’s rights under the acthave not been excluded under clause 8.1, nothing in these terms will affect therights of the customer under the act.
8.3 Subjectto clause 8.2:
(a) The customerrelies upon its own knowledge, skill and judgement in relation to theparticular use or suitability of the products for the customer’s purpose.
(b) All warranties,descriptions, representations or conditions whether implied by the sale ofgoods act 1908 or otherwise or contained in any document not furnished by KarChargersare expressly excluded to the fullest extent permitted by law.
(c) KarChargers willaccept no liability for any damages or losses arising from a consequence of anyact, default or negligence on the part of KarChargers or of an employee, agentor contractor of KarChargers.
(d) insofar as KarChargersmay be liable, notwithstanding clause 8.3(b), for any loss, damage or injuryarising directly or indirectly from any defect in the products, the totalliability of KarChargers, whether in tort, contract or otherwise, will belimited to the lesser of the price of the products complained of, the cost ofrepairing or replacing the products and the actual loss or damage suffered bythe customer.
(e) KarChargerswill not be liable in any event for any consequential, indirect or damage, lossor injury of any kind suffered by the customer.
8.4 The customer shalluse its best endeavours to minimise loss and damage arising from any allegedbreach of the terms by KarChargers.
9. IntellectualProperty Rights
9.1 The sale of anyproducts by KarChargers to the customer does not give the customer the right touse, sell, disseminate or duplicate any of KarChargers’s trademarks,copyrights, designs or other intellectual property rights (unless agreedotherwise by KarChargers in writing).
10.1 The customer agrees to fully indemnifyKarChargers for, and on demand pay KarChargers, all costs (including costscalculated on a lawyer and own client basis), losses, damages, expenses andclaims incurred or which KarChargers is or becomes liable for as a consequenceof or in connection with:
(a) the customer’sfailure to comply with or breach of any of its obligations and/or warrantiesunder the agreement; and
(b) any claim orlegal 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 doneor not done in good faith in the exercise or attempted exercise by KarChargersof its rights under the agreement; and
(d) any amount thatthe customer fails to pay on the due date for payment; and
(e) the exercise,enforcement, preservation or attempted exercise, enforcement or preservation ofany of KarChargers’s rights under the agreement, or in suing for and recoveringany moneys that the customer owes or is liable to pay to KarChargers orindemnify KarChargers for; and
(f) takingany actions or doing any things (including paying or incurring liabilities topay any moneys) to protect or preserve KarChargers’s rights under theagreement, including the security interest granted to KarChargers pursuant tothe agreement.
(g) inall cases on a full indemnity basis.
11. AccountSuspension and Closure
11.1 Without prejudice to any other rightsthat KarChargers may have, KarChargers may suspend a customer’s account ifpayment for the products is not made on the due date. An accountsuspension may cause all unfulfilled orders from the customer to be cancelled.
11.2 KarChargers may close a customer’saccount at any time for any reason whatsoever, including without limitation,where:
(a) any of theseterms are not observed; or
(b) the customerhas on more than 3 previous occasions in any 12 month period failed to makepayments required in accordance with these terms notwithstanding that the mostrecent invoice was paid on the due date,
andKarChargers shall not be liable to the customer for any loss ordamage, 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 theobligations and liabilities of the customer under these terms. Ifany of the products and/or their proceeds are not readily identifiable and/ortraceable, the customer grants KarChargers a security interest in all of thecustomer’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 andall relevant information to enable KarChargers to register its securityinterest, maintain such registration, and enforce its rights pursuant to itssecurity interest.
12.4 The customer will not change its namewithout 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 othergoods, 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 asis necessary. the customer will indemnify KarChargers againstany costs and liabilities that may arise directly or indirectly as a result ofthe entry by KarChargers, its agents or employees into any premises or theseizure by KarChargers of any products (or the severing or disconnection ofsuch products from other goods) under this clause.
12.6 Thecustomer waives its right to:
(a) Receivea statement of account pursuant to s116 of the ppsa;
(b) Receive noticeof KarChargers’s proposal to retain collateral under s120(2) of the ppsa and toobject to that proposal under s121 of the ppsa;
(c) Receive noticefrom KarChargers under s114(1)(a) of the ppsa that KarChargers intends to sellcertain products in which it has a security interest;
(d) not have products damaged if KarChargers removes an accessionunder s125 of the ppsa;
(e) to receivenotice of the removal of an accession under s129 of the ppsa;
(f) to applyto the court for an order concerning the removal of an accession under s131 ofthe ppsa; and
(g) toreinstate a security agreement under s133 and/or 134 of the ppsa.
13. Defaultand Enforcement Rights
13.1 If the customer fails to pay anyamount owing on the due date or commits any other default under the agreementand any such default continues for seven days, or any of the events set out inclause 4.7 occur or KarChargers in its absolute discretion forms the opinionthat the customer cannot or will not be able to pay its debts to KarChargers asthey 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 mayexercise any or all of its rights pursuant to any security interest it has;
(c) KarChargers mayrequire the customer, at its expense, to promptly return to KarChargers allproducts supplied by KarChargers which have not been fully paid for; and
(d) KarChargers mayby written notice to the customer cancel the agreement;
and any rights exercised by KarChargers pursuant to this clauseshall not in any way limit the customer’s liabilities under the agreementincluding without limitation the customer’s obligations and liabilitiespursuant to the indemnities contained in the agreement and/or to pay damagesfor any breach nor preclude KarChargers from exercising any other right orremedy (in equity or in law) that may be available to it.
14 Exerciseof Rights:
14.1 The following provisions applyto the exercise of KarChargers’s rights under the agreement:
(a) KarChargers mayexercise a right under the agreement alone, or at the same time as exercisingany other rights, powers or remedies available to KarChargers.
(b) KarChargersdoes not need to notify the customer or any other person first before KarChargersexercises 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 anyloss caused by:
i. theexercise or attempted exercise of any of KarChargers’s rights; or
ii. afailure by KarChargers to exercise, or any delay in exercising, any of KarChargers’srights; or
iii. themanner 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 personalinformation received from the customer for marketing, product development,account administration and credit purposes. KarChargers may disclosepersonal information about the customer to any person the customer names as acredit referee or to any person for the purpose of securing KarChargers’ssecurity interest granted pursuant to these terms. Failure by thecustomer to supply personal information for these purposes entitles KarChargersto withdraw or refuse credit to the customer and to repossess any products inthe possession or control of the customer.
16.1 Severance: if any clause or partof a clause of these terms is held to be invalid or unenforceable for whateverreason, to the extent not inconsistent with that invalid clause, the remainingprovisions shall remain in full force and effect.
16.2 Entire agreement: the agreementconstitutes the entire agreement of the parties in respect of the products andreplaces any previous agreements and understandings and will prevail over anyexisting or subsequent terms and conditions set out in any document (includingany customer purchase order), unless agreed otherwise in writing by KarChargers.
16.3 Waiver: no waiver of any breachof, or failure to enforce any provision of, the terms at any time by any partywill in any way limit the right of such party thereafter to enforce and compelstrict compliance with the provisions of the terms.
16.4 Force majeure: KarChargers shallnot be liable for any delay in performing its obligations due in whole or in partby 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 theimposition of any export or import bans or any other cause beyond thereasonable 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 thecustomer comprises more than one person, then each of them shall be jointly andseverally liable for the obligations and liabilities of the customer underthese terms.
16.7 Assignment: the customer is notentitled to assign, transfer or otherwise dispose of any of its rights orobligations under these terms without KarChargers’s prior writtenconsent. KarChargers shall be entitled to assign, transfer ordispose of any or all of its rights and obligations under these terms withoutthe prior consent of the customer.
16.8 Notice: unless agreed otherwisein writing, all notices under the agreement shall be served in writing to thelast known address of the parties.
16.9 Errors and omissions: errors andomissions of a clerical nature in quotations, invoices or statements shall besubject to correction.
16.10 Legislation: a reference to any legislationor 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 begoverned by, and construed in accordance with, the laws of Australia.