Terms of service

Kitchen Equipment Victoria Pty Ltd: General Terms and Conditions of Sale

These Terms apply to the sale of new goods and related services by KEV. Pre-owned goods are supplied under KEV’s separate pre-owned equipment terms.

1. Definitions and interpretation

1.1 In these Terms:

ACL means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Agreement means any agreement for the supply of goods or services by KEV to the Customer, including these Terms and any Quotation.
Anticipated Installation Date means the anticipated date for delivery and installation of the goods and completion of the services, as specified in a Quotation.
Business Day means a day other than a Saturday, Sunday or public holiday in Victoria.
Customer means the person, firm or corporation (jointly and severally if more than one) acquiring goods or services from KEV.
goods means the goods supplied by KEV to the Customer, as described in a Quotation.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
KEV means Kitchen Equipment Victoria Pty Ltd (ACN 651 032 585).
Order means an order placed by a Customer based on a Quotation.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price List means any price list issued by KEV from time to time.
Quotation means any written quotation provided by KEV to the Customer for the proposed supply of goods or services. Its terms override these Terms to the extent of any inconsistency.
Security Interest has the meaning given in the PPSA.
services means any services supplied by KEV to the Customer, as described in a Quotation.
Site means the site where the goods are to be delivered or installed.
Terms means these General Terms and Conditions of Sale.
Warranty and Warranty Period have the meanings given in clause 13.

1.2 Headings are for convenience only. The singular includes the plural. “Including” is not a word of limitation. A reference to legislation includes that legislation as amended or replaced.

2. Basis of agreement and orders

2.1 Unless KEV agrees otherwise in writing, these Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms of purchase.

2.2 A Quotation is valid for 10 days, is an invitation to the Customer to place an Order only, and is subject to these Terms.

2.3 Additional terms in a Quotation prevail over these Terms to the extent of any inconsistency.

2.4 The Customer’s acceptance of a Quotation or placement of an Order is an offer. An Agreement is formed when KEV confirms acceptance in writing (including by email) or begins supplying the goods or services, whichever occurs first.

2.5 KEV may rely on the conduct and representations of any person that they have authority to place an Order, accept a Quotation or direct KEV on behalf of the Customer.

2.6 Quotations, Price Lists, sales literature and website content are not offers. KEV may refuse any Order in its discretion.

2.7 The Customer must give KEV its specific requirements for the goods and services, including dimensions, utilities and intended use.

2.8 KEV may vary these Terms by written notice to the Customer. Variations apply to Orders placed after the date of the notice.

2.9 KEV may correct typographical, clerical or pricing errors in any quotation, price list, website listing, invoice or other document. If a correction increases the price of an Order already placed, KEV will notify the Customer in writing and the Customer may cancel that Order within 7 days of the notice, in which case KEV will refund all amounts paid for it.

2.10 The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

3. Pricing and GST

3.1 All prices are in Australian dollars.

3.2 Prices quoted to Customers acquiring goods or services for personal, domestic or household use include GST. Unless a Quotation states otherwise, prices quoted to other Customers exclude GST. Where GST is payable in addition to the price, the Customer must pay it at the same time as the price.

3.3 Unless agreed in writing, prices do not include:

import levies, duties or other taxes (other than GST);
freight, delivery, insurance and other charges (which vary by delivery address, see clause 12.1) from KEV’s Melbourne warehouse to the Site;
the cost of transport and accommodation for KEV personnel required to provide services; or
costs payable to third-party providers, including electricians, plumbers, gas fitters and installers.

3.4 The Customer must pay the amounts in clause 3.3 in addition to the price of the goods and services. KEV does not charge a surcharge for card payments.

4. Price variations

4.1 If the Customer requests a variation to the Agreement, KEV may increase the price to reflect the variation or provide a revised Quotation.

4.2 KEV may also vary the price after an Agreement is formed, by notifying the Customer as soon as practicable, where:

the Customer requests or requires a different delivery or transport method (such as a crane, conveyor or lift);
the Customer does not give adequate instructions, access or information, or delays giving them;
the layout or condition of the Site requires a change to the installation; or
the supplier or manufacturer increases the cost of goods that have not yet been dispatched.

4.3 If a price increase under clause 4.2(d) exceeds [10]%, the Customer may cancel the affected Order by written notice within [5] Business Days of KEV’s notice. KEV will then refund all amounts paid for it, except where the goods were specially ordered or made to the Customer’s specification, in which case KEV may retain its reasonable costs.

5. Payment

5.1 Payment in advance. The Customer must pay the full price of the goods, together with freight, delivery and all other charges notified by KEV, in cleared funds before KEV dispatches the goods. KEV will not dispatch, deliver or release any goods until payment in full is received, and any estimated dispatch or delivery date runs from the date cleared funds are received. KEV does not offer trade or credit accounts, and every Order must be paid in advance.

5.2 Any deposit specified in a Quotation must be paid before KEV processes the Order, and the balance must be paid in full before dispatch under clause 5.1.

5.3 Time for payment is of the essence. Except where the law requires otherwise, the Customer must pay without deduction or set-off.

5.4 Payment may be made by cash, bank cheque, electronic funds transfer to KEV’s nominated account, or card. Payment is not made until KEV receives cleared funds. KEV will provide tax invoices and receipts as required by law.

5.5 The Customer must give KEV accurate and current account or card details for any debit payments, tell KEV immediately of any changes, and ensure sufficient funds are available when payment is due.

5.6 KEV may delay delivery or supply until payment is received in cleared funds, and is not liable for loss arising from the Customer’s failure to pay on time.

5.7 KEV may revoke or amend payment terms on reasonable written notice.

6. Payment default

6.1 If the Customer defaults in paying any amount by its due date, or a payment cannot be processed, then all amounts the Customer owes KEV become immediately due and payable without further notice, and KEV may, without prejudice to its other rights:

charge interest on the overdue amount at the rate fixed under the Penalty Interest Rates Act 1983 (Vic), calculated daily from the due date until payment;
recover all reasonable costs and expenses of enforcement, including legal costs on a full indemnity basis, debt collection costs, and the costs of recovering goods or enforcing its Security Interest;
suspend further supply of goods or services until all amounts owing are paid; and
by written notice, terminate any unperformed part of the Agreement, subject to applicable law.

6.2 KEV may also rely on clause 6.1(c) where the Customer (if an individual) becomes bankrupt, or (if a corporation) has an administrator, liquidator or similar person appointed, or where the Customer enters any scheme or arrangement with its creditors.

7. Retention of title

7.1 Title and property in the goods remains with KEV, and does not pass to the Customer, until KEV receives payment in cleared funds of all amounts the Customer owes KEV for goods and services.

7.2 Until then, the Customer must:

Hold the goods as bailee for KEV, keep them in good condition, and store them separately and identifiably as KEV’s property;
Insure the goods in accordance with clause 9;
Not charge, encumber or grant any interest in the goods, or allow any other Security Interest to be registered over them;
If it sells the goods in the ordinary course of business, hold the proceeds on trust for KEV in a separate account up to the amount owing to KEV (failure to do so does not affect this obligation); and
On KEV’s written notice, return the goods to KEV. On notice, the Customer’s right to possess or use the goods ends.

7.3 Where the Customer has defaulted, KEV may, on reasonable notice where practicable, enter any premises where it reasonably believes the goods are located and remove them, even if attached to other goods. The Customer irrevocably licenses KEV to do so and indemnifies KEV against claims arising from that entry, except to the extent caused by KEV’s negligence or unlawful act.

8. Personal Property Securities Act

8.1 The Customer acknowledges that these Terms are a security agreement and that KEV holds a Security Interest in all goods (and their proceeds) supplied by KEV, whether now or in the future. That Security Interest is a purchase money security interest to the extent permitted by the PPSA, is continuing, and secures all amounts the Customer owes KEV.

8.2 The Customer must do everything KEV reasonably requires to register and maintain its Security Interest with the priority KEV requires, including signing documents and providing information. The Customer must give KEV 14 days’ written notice of any change to its name, address, contact details or other registered details.

8.3 The Customer must keep the goods free of any other charge, lien or Security Interest, and must not deal with them in a way that prejudices KEV’s rights.

8.4 To the extent permitted by law, where Chapter 4 of the PPSA would apply to enforcement of KEV’s Security Interest, the Customer and KEV agree that every provision of the PPSA that may be excluded under section 115 does not apply. KEV need not give any notice under the PPSA (including notice of a verification statement) unless it cannot lawfully be excluded.

8.5 The Customer must not disclose to any person information of the kind in section 275(1) of the PPSA, including this security agreement, except as permitted by section 275(7).

8.6 If clause 7 and the PPSA conflict, clause 7 prevails to the extent permitted by law.

9. Risk and insurance

9.1 Unless agreed in writing, risk in the goods passes to the Customer on the earliest of delivery to the Site, delivery to the Customer’s agent or carrier, collection by or for the Customer, or deemed delivery under clauses 12.5 and 12.6.

9.2 From the time risk passes until title passes (and the Customer should continue afterwards), the Customer must insure the goods for their full replacement value against theft, damage and loss, and must give KEV evidence of insurance on request.

9.3 Except to the extent caused or contributed to by KEV’s negligence or breach of the Agreement or a non-excludable guarantee, the Customer bears the risk of, and is liable for, loss, damage or injury to persons or property (of the Customer or third parties) arising from the use or possession of the goods or services.

10. Acknowledgements

10.1 To the extent permitted by law, the Customer acknowledges that:

It has not relied on any advice, recommendation, information or assistance from KEV about the goods or services or their use, other than as stated in the Quotation;
It is solely responsible for satisfying itself that the goods and services suit its intended use, including dimensions, clearances, ventilation, power, gas and water requirements, and compliance with building, health, gas, electrical and other regulations at the Site; and
Descriptions, images and specifications in a Quotation, invoice or marketing material are for identification only, and manufacturers may change specifications without notice.

10.2 This clause does not limit any right the Customer has under the ACL that cannot be excluded.

11. Customer’s obligations

11.1 The Customer is responsible for the accuracy of its contact details, specifications and requirements, and must give KEV any necessary information within a reasonable time.

11.2 The Customer must:

Make the Site available by the Anticipated Installation Date;
Allow KEV and its contractors unobstructed access at all reasonable times to deliver, install, inspect, test, adjust, maintain, repair, remove or replace the goods;
Provide clean, safe and proper access to the Site (including parking, lifts and doorways suitable for the goods) and tell KEV about any hazards or access restrictions;
Ensure the Site is properly prepared, with all required utilities, ventilation, permits and approvals in place, before installation;
Arrange suitable insurance and protection for the goods from delivery; and
Be present, or have an authorised representative present, to accept delivery.

11.3 The Customer warrants that it has authority to enter the Agreement and that all information it gives KEV is true and complete.

12. Delivery and installation

12.1 KEV will arrange delivery of the goods at the Customer’s cost. Delivery to the Customer’s agent, carrier or representative is delivery to the Customer. Delivery charges depend on the delivery address and the size and weight of the goods, and may be higher than any estimate or earlier quote, particularly for remote, regional, interstate, offshore, difficult-access or multi-level locations. KEV will advise the Customer of the delivery charge for the Site, and of any increase, before dispatch, and the Customer must pay the advised charge in cleared funds under clause 5.1 before dispatch. If the Customer does not accept an increased delivery charge, it may cancel the Order for goods not yet dispatched by written notice, and KEV will refund the amounts paid for them.

12.2 Unless the Quotation states otherwise, delivery is to the kerbside or front door of ground-floor locations only. A delivery driver may, but need not, assist with moving goods into the premises, and does so at the Customer’s sole risk.

12.3 Where requested by the Customer, KEV will arrange installation by a third-party installer. The installation cost is payable in addition to the price of the goods. The installer is an independent contractor. To the extent permitted by law and subject to clause 17, KEV is not liable for the acts or omissions of a third-party installer, and the Customer indemnifies KEV against claims arising from the installer’s work, except to the extent caused by KEV’s negligence or breach of the Agreement. Any installer’s own warranty is in addition to the Warranty.

12.4 The Customer indemnifies KEV against loss or damage suffered by KEV, its contractors or employees because of frustrated or delayed delivery or installation caused by the Customer, and against costs arising from delivery delays requested or caused by the Customer, except to the extent caused by KEV’s negligence.

12.5 Where the Customer is to collect the goods, it must do so, at its own cost, within 7 days of notice that the goods are ready. If it does not, the Customer is deemed to have taken delivery from the end of that period and must pay reasonable storage charges of [$30 per week / as advised in writing] on demand.

12.6 If the Site is not ready by the Anticipated Installation Date and the Customer has not agreed a new date with KEV, the Customer is deemed to have taken delivery of the goods from the Anticipated Installation Date, and must pay reasonable weekly storage charges and any re-delivery or re-attendance costs on demand.

12.7 Dates and periods for delivery or completion are estimates only and are not contractual commitments. KEV will use reasonable endeavours to meet them and will tell the Customer promptly of any material delay.

13. Warranty, returns and cancellation

13.1 In these Terms, Warranty means the warranty against defects provided by the manufacturer with the goods, together with any additional warranty KEV expressly gives in writing in a Quotation. Warranty Period means the period stated in that warranty or Quotation. KEV administers Warranty claims for the Customer as set out in this clause. The Warranty is given for the benefit of the original Customer only and is not transferable. The warranty terms are written in Refund, return and warranty policy.

14. Privacy

14.1 KEV collects, uses and discloses personal information in accordance with its Privacy Policy. KEV may use it to supply goods and services, assess and manage credit, recover debts, provide warranty and after-sales service, and (unless the person opts out) send marketing.

14.2 The Customer consents to KEV disclosing personal information to its suppliers, manufacturers, couriers, installers, financiers, insurers, debt collectors and credit reporting bodies where reasonably necessary for those purposes, and must obtain the consent of any individual whose information it gives KEV.

15. General

15.1 These Terms are governed by the law of Victoria. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and the Commonwealth courts sitting there.

15.2 A failure or delay by KEV to enforce these Terms is not a waiver of any right. A waiver is effective only if in writing.

15.3 If a provision is unenforceable, it must be read down so as to be enforceable or, if that is not possible, severed, without affecting the rest of these Terms.

15.4 A notice must be in writing and delivered by hand, sent by prepaid post, or sent by email to the recipient’s last known address. A notice is taken to be received: if hand delivered, on delivery; if posted, 3 Business Days after posting; and if emailed, when sent, unless the sender receives a delivery failure message, or if sent after 5pm or on a non-Business Day, on the next Business Day.

15.5 These Terms and the Quotation are the entire agreement between the parties about their subject matter and supersede all earlier discussions and representations, except those that cannot lawfully be excluded.

15.6 The Customer may not assign or transfer its rights or obligations without KEV’s prior written consent. KEV may assign its rights or subcontract its obligations.

15.7 Where the parties agree that KEV will supply additional or varied goods or services, they are supplied on these Terms and any other terms agreed in writing.