Terms & Conditions
TERMS & CONDITIONS FOR THE SUPPLY OF GOODS BY LEGEND CORPORATE SERVICES PTY LTD (“LEGEND”) TRADING AS ACCULEC POWER
1. The terms of payment are strictly thirty (30) days from the end of the month of purchase and payment is due and payable on that date. Acculec Power Pty Ltd and its related bodies corporate (as that term is defined in the Corporations Act 2001 (Supplier)) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
2. The Applicant acknowledges and agrees that this agreement shall be governed by the laws of Queensland, and the laws of the Commonwealth of Australia which are in force in Queensland.
3. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
4. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of Queensland and the relevant federal courts and courts competent to hear appeals from those courts.
5. The Applicant charges in favour of the Supplier all of its estate and interest in any real and/or personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
6. The Applicant appoints as its duly constituted attorney the Supplier's company secretary from time to time to execute in the Applicant's name and as the Applicant's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
Purpose of credit
7. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
8. The credit facilities provided by the Supplier are not transferable by the Applicant without the prior written consent of the Supplier. The Supplier may assign this agreement to another party without prior notice to the Applicant. The Supplier will give the Applicant notice when the assignment has been affected.
Formation of contract
9. Quotations made by the Supplier shall not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant’s offer shall complete a contract.
10. Placement of an order, either verbally or in writing, shall imply acceptance of the Supplier’s offer and of these terms and conditions.
11. Unless otherwise stated, quotations are valid for a maximum period of thirty (30) days from the date of quotation and notwithstanding the Applicant’s purported acceptance after such period has elapsed are subject to confirmation by the Supplier and the Supplier reserves the right to alter or withdraw any quotation.
12. Unless otherwise stated, prices are net and F.O.T. at the Supplier’s warehouse. If for any reason the Applicant fails to take delivery of the goods within seven (7) days from the date on which the Applicant is notified that the goods are ready for delivery, and notwithstanding anyother provision hereof, the risk in the goods shall forthwith pass to the Applicant and the Supplier shall be entitled to payment for the goods inaccordance with the provisions hereof. In such circumstances the Supplier shall in its entire discretion be entitled to arrange for storage of thegoods at its warehouse or such other place as the Supplier may decide in its sole discretion to be suitable and all costs of and risks incidental to such storage including insurance shall be for the Applicant and payable on demand.
13. In the Event that the percentage of the price variable with the $A exchange rate is not quoted, 80% of the price will be variable, any change in import duty will also vary with the price.
14. Prices for imported goods are based upon freight and insurance rates prevailing at the date quotation or acceptance of order. Should there be any variation in rates up to the date of delivery, then the Supplier may increase or decrease the prices in accordance with these movements in rates.
15. The Supplier’s prices for imported goods are based on the exchange rate prevailing at the date of the Supplier’s quotation or if there be noquotation, at the date of acceptance of the Applicant’s order (the initial exchange rate). Should there be any variation for any reason in theexchange rate subsequent to the date of quotation or acceptance (as the case may be) then the price for the goods shall be adjusted in accordance with the increase of decrease between the initial exchange rate and the exchange rate existing at the date of payment for the goods by the Supplier.
16. The Supplier’s prices for imported goods are based on the rate of duty for the goods prevailing at the date of the Supplier’s quotation or ifthere be no quotation, at the date of acceptance of the Applicant’s order (the initial duty rate). Should there be any variation for any reason in the classification of the goods or in the method of assessment or rate of the duty subsequent to the date of quotation or acceptance (as the case may be) then the price for the goods shall be adjusted in accordance with the increase or decrease between the initial duty rate and the applicable rate existing at the date of payment of duty for the goods by the supplier.
17. These Terms and Conditions shall apply to and be terms and conditions of any contract formed as a result of acceptance by Acculec Power of an offer made by the Customer and shall in the event and to the extent of any inconsistencies prevail over all terms and conditions contained in any offer, order or other document submitted to Acculec Power by the Customer.
18. Unless the Supplier and the Applicant agreed that paragraph 18 is to apply, the Applicant is responsible for and shall bear the cost of the collection of all goods from the relevant premises specified by the Supplier in the confirmation and must collect or arrange the collection of such goods within 24 hours of notification by the Supplier that such goods are ready for collection. If such goods are not collected within that 24 hour period, the Applicant shall pay all charges and all costs and expenses relating to the storage thereof.
19. If the Supplier and the Applicant agree that this paragraph 18 is to apply, the Supplier will arrange for the delivery of the relevant goods to the relevant premises specified by the Applicant in the order and, unless otherwise agreed in writing between the Supplier and the Applicant, the Supplier shall charge to the Applicant the applicable costs. The manner of delivery shall be in the Supplier’s absolute discretion unless a specific manner of delivery has been agreed in writing between the Applicant and the Supplier.
20. Delivery of goods will be deemed to have been effected by the Supplier upon the Supplier placing the goods at the disposal of the Applicant at the premises specified in the confirmation in accordance with paragraph 17 or upon collection of the products by a carrier pursuant to paragraph 18 (as the case requires).
21. The Supplier reserves the right to deliver goods the subject of an order by instalments, whether in accordance with paragraph 17 or 18, as the case may require. This would not, however, preclude the customer from the obligation to pay the whole of its debt. Partial delivery shall not entitle the Applicant to cancel its order or to claim compensation from the Supplier and the Applicant agrees to indemnify the Supplier against any claims by third parties consequent on partial deliveries.
22. If a delivery date or date for the completion of services is specified in a confirmation, the Supplier shall not be liable for any failure to meet such date resulting from any cause beyond its reasonable control, including, without limiting the generality of the foregoing; lockouts; strikes; fire; riots; tempest; accidents to machinery; war; non-availability of materials; or default, non-supply or late supply by any supplier or sub-contractor to the Supplier.’
Limitations of Liability
23. If a delivery date or date for completion of services is specified in a confirmation and the Supplier fails to deliver the goods or complete the services by that date or at all, for any reason whatsoever:
(a) the Supplier will not be liable for consequential loss or damage; and
(b) the Applicant will not be entitled to rescind or repudiate the contract comprising the order and the confirmation.
24. The Applicant shall indemnify the Supplier from and against all actions, suits, claims, proceedings, accounts, demands, judgments, costs and expenses (including legal costs and expenses) and any liability whatsoever which the Supplier may suffer or incur directly or indirectly in relation to any damage to property or any death of or injury to any person occurring in connection with the Supplier’s performance of services at the Applicant’s premises or any other premises specified by the Applicant.
25. If the Supplier supplies any products or services to any specifications or other requirements of an Applicant, the Applicant shall indemnify the Supplier from and against all actions, suits, claims, proceedings, accounts, demands, judgments, costs and expenses (including legal costsand expenses) and any liability whatsoever which the Supplier may suffer or incur directly in relation to the Supplier’s compliance with any such specifications or other requirements of that Applicant, including but not limited to:
(a) any infringement of the industrial or intellectual property rights of any third party; and
(b) any defect in or unsuitability of such products or the Applicant’s products.
26. Except as expressly provided in paragraph 21 or the warranty, all items, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise relating in any way to any products or services supplied by the Supplier are excluded. Without limiting the generality of the preceding sentence, the Supplier will not be under any other liability in respect of anyloss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any products or services supplied by the Supplier.
27. Where any applicable legislations implies any term, condition or warranty into the relationship between the Supplier and the Applicant or into these conditions, or otherwise gives the Applicant a particular remedy against the Supplier, and that legislation or any legislation avoids or prohibits provisions excluding or modifying the application of or exercise of, or liability under such term, condition, warranty or remedy, then that term, condition, warranty or remedy shall be deemed to be included in these conditions, or, as the case may be, apply to that relationship. However, liability for any breach of such term, condition or warranty or under such remedy, shall be limited, at the Supplier’s option, in any one or more of the ways permitted by that legislation including, where so permitted:
(a) if the breach relates to any goods to:
(i) the replacement of those goods or the supply of equivalent products;
(ii) the repair of those goods;
(iii) the payment of the cost of replacing those goods or acquiring equivalent goods; or
(iv) the payment of the cost of having those goods repaired; and
(b) if the breach relates to any services to:
(i) the supplying of those services again; and
(ii) the payment of the cost of having those services supplied again.
28. The Supplier assumes no liability for any technical advice or assistance given or the results obtained therefrom, all such advice being given and accepted at the Applicant’s risk.
29. The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
30. The Supplier does not promise that facilities for repairs of the goods or parts therefore will be available
31. Risk in the goods supplied shall pass to the Applicant immediately on delivery. The Applicant should insure the goods thereafter against any such risks as the Applicant thinks appropriate.
Definitions & Interpretation
32.1 - “The Company” means Legend Corporation and all subsidiaries including Cabac, Acculec Power and System Control Engineering
32.2 - “Customer” means the purchaser of the Goods specified on the invoice
32.3 - “Goods” means the goods specified on the invoice
32.4 - “GRA” means a Goods Return Authority (see appendix 1)
33.1 - All goods to be returned must be accompanied by a completed GRA. Goods returned without a completed GRA will be returned to the Customer at their expense. Upon acceptance and initiation of a Credit Return, Customers will be issued with a GRA
33.2 - The completed GRA must include the product number/s, quantity and purchase reference (invoice number) as well as Customer details and clear reasons for the return
Conditions of Return
34.1 - Returns for Credit of Goods supplied will be accepted at the sole discretion of The Company
34.2 - All returned goods must be in a complete format resaleable condition. Any returned goods not in a resaleable condition will be rejected and returned to the Customer at their expense
a. Goods are in brand new condition, including any accessories
b. Original packaging, undamaged
c. Including any and all pamphlets, manuals and labels
The Company will only accept returns based on the following criteria:
|Within 90 Days of Invoice date
|Within 180 Days of Invoice date
|More than 180 Days of Invoice date
34.3 - All returned goods must be received at The Company no later than 28 days after the GRA is raised. Any returns not received within the 28 day period will be cancelled
34.4 - All returned goods must pass through the Goods In process in the Warehouse. Goods being returned will not be accepted at Reception or the general office.
34.5 - Payments of monies due is not to be withheld in expectation of credits 17. Transport & Freight Costs
Transport & Freight Costs
35.1 - Any costs associated with the returning of goods will be the responsibility of the Customer
35.2 - If the goods are being returned due to the fault of The Company, the transporting of the returned goods will be covered by The Company.
a. The goods delivered are not what the Customer ordered
b. The goods delivered are faulty or damaged
c. Promotional goods (as part of an agreement)
End of Line stock (EOL)
36 - End of Line stock will only be returnable within 60 days of notification from The Company. Any EOL stock returned greater than 60 days from notification will not be accepted and will be returned to The Customer at their expense.
37. When the goods being returned are due to a branch closure, the goods will be inspected by a representative of The Company. All goods inspected will only be returned should they meet the requirements of item ‘3. Conditions of Return’
38. - Promotional goods will only be accepted as per the agreed arrangement for said promotion
38.1 - Where the agreement states: Promotional goods that were loaned to the Customer will be returned with no cost to the Customer unless they are found to have been damaged or misused in which case the cost of the products may be charged to the Customer.
38.2 - Any returning promotional goods must include any free or giveaway items included in the promotion. If these items are not returned, the Customer may incur a charge to cover the cost of said items.
39 - Any goods that have been manufactured or made to order will not be accepted for return
40. All claims for credit for damaged, defective or short delivered goods or for goods to be returned must be notified to the Supplier immediately. The Supplier will not accept claims that are not notified within 7 days of delivery. The goods must be returned, at the cost of the Applicant, to the Supplier’s site from where they were purchased. Goods returned for credit and accepted by the Supplier will be subject to handling charges of an amount equal to 20% of the credit claimed. If goods are not returned after 14 days of notification of the claim to the Supplier, the Applicant shall not be entitled to any credit. Unless otherwise agreed, no request for credit will be approved until a representative of the Supplier has inspected the goods on which credit is claimed. Until inspection, the Applicant is responsible for maintaining proper care of the goods in question. The Supplier will not accept claims for credit for:
(a) damaged or defective goods or goods returned where the Applicant has not maintained proper care of the delivered goods;
(b) where the damage or defect was caused or contributed to by the negligent act or omission of the Applicant, its employees, against or invitees;
(c) goods produced or manufactured on the Applicant’s instruction;
(d) non-returnable goods ordered specifically for the Applicant;
(e) goods altered by the Applicant; and
(f) partly used goods.
41. The minimum order value placed by the Applicant to the Supplier shall be $100.00
Information and Drawings
42. All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by the Supplier or otherwise or contained in catalogues, price lists and other advertising matter of the Supplier are approximate only and are intended to be way of a general description of the goods and shall not form part of the contract unless certified by the Supplier in writing, in which case they shall be subject to recognised tolerances. Where specification, drawings or other particulars are supplied by the Applicant, the Supplier’s price is made on estimates of quantities required. Should there be any adjustments in quantities above or below the quantities estimated by the Supplier andset out in quotation, then any such increase or decrease shall be adjusted on a unit rate basis according to the Supplier’s unit prices then prevailing.
43. Unless stated in writing to the contrary the Supplier’s prices include packing in accordance with the Supplier’s standard practice. The costof any additional or other form of packing requested by the Applicant or which may be deemed reasonably necessary by the Supplier on account of the nature of the goods shall be for the Applicant’s account and shall constitute an additional charge to the Applicant payable on demand.
Retention of title
44. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods shall not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
45. Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier and shall not mix the goods with other similar goods.
46. The Applicant shall be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been madeto the Supplier, the Applicant shall sell as agent and bailee for the Supplier and the proceeds of sale of the goods shall be held by the Applicant on trust for the Supplier absolutely.
47. The Applicant’s indebtedness to the Supplier, whether in full or in part, shall not be discharged by the operation of clause 37 hereof unless and until the funds held on trust are remitted to the Supplier.
48. The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with or without priornotice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue.
49. The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 39. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
50. The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicanthereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
Personal Property Securities Act 2009 (PPSA)
51. The Applicant acknowledges it will grant the Supplier a purchase money security interest in all present and after acquired goods supplied by the Supplier and the proceeds to secure all moneys owing to the Supplier now and in the future in respect of the supply of goods and the Applicant will do all things reasonably required by the Supplier to register and perfect that interest under the terms of the PPSA or otherwise.
52. The Applicant waives (and provides an ongoing waiver of) the Applicants right to receive any notices dealing with the goods and default as far as the law allows, including but not limited to ss157, 130, and 135 of the PPSA.
53. The Applicant, at the Suppliers request, will pay any or all os the Suppliers costs and expenses, on a full indemnity basis, related to registration and enforcement of any security interest or security agreement (including in relation to any security interest granted by a person guaranteeing the Applicants performance of these terms and conditions)
Cancellation of terms of credit
54. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.
55. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
56. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
57. The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the
Applicant’s creditworthiness, including an updated credit application.
58. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
59. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
60. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
(a) the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the Applicant has the right to be indemnified out of trust assets;
(c) the Applicant has the power under the trust deed to sign this agreement; and
(d) the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
61. The Applicant must give the Supplier a copy of the trust deed upon request.
62. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and thatall of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
63. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
64. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
65. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant's authorised officer in writing.
66. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
67. The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
68. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 39 and 58.
(b) Secondly, in payment of any interest incurred in accordance with clause 62.
(c) Thirdly, in payment of the outstanding invoice(s).
Taxes and duty
69. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
70. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration; the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
71. The interest rate on any overdue debts is a fixed rate of 15% per annum from the date of invoice.
72. All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
73. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
74. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
75. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
76. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
77. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
Consent to register
78. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
79. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
80. The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document
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