Terms & Conditions of Sale

TERMS AND CONDITIONS OF SALE

1. DEFINITIONS

In these Terms:

“ACL” means the Australian Consumer Law;

“Agreement” means any agreement entered into for the provision of goods or services by KEV to the Customer including but not limited to these Terms;

“Anticipated Installation Date” anticipated date for delivery and installation of the goods and completion of the services specified in a Quotation;

“Credit Application, Credit Agreement and Deed of Indemnity and Charge” means the credit application, credit agreement and deed provided by KEV to the Customer that must be approved prior to the supply of goods and services to the Customer on credit.

“Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from KEV;

“KEV” means Kitchen Equipment Victoria Pty Ltd (ACN 651 032 585);

“Goods” means the goods supplied by KEV to the Customer, as described in a Quotation;

“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;

 “Order” means an order placed by a Customer pursuant to a Quotation;

“PPSA” means the Personal Property Securities Act 2009 (Cth);

“Price List” means any price list issued by KEV from time to time in relation to the price payable for the goods or services;

“Quotation” means any written quotation provided by KEV to the Customer concerning the proposed supply of goods or services, whose terms shall override these Terms to the extent of any inconsistency;

“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 and/or installed; and

“Terms” means these General Terms and Conditions of Sale.

2. BASIS OF AGREEMENT AND ORDERS

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

2.2 Any Quotation provided by KEV to the Customer concerning the proposed supply of goods or services is:

(a) valid for 30 days;

(b) an invitation only to the Customer to place an Order based upon that Quotation;

(c) subject to these Terms and any Credit Application, Credit Agreement and Deed of Guarantee, Indemnity and Charge.

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

2.4 The Agreement is accepted by the Customer when the Customer sends a written communication accepting a Quotation, where KEV confirms the acceptance of an Order from the Customer in writing or electronic means or provides the Customer with the goods or services pursuant to the Quotation and at the request of a Customer, whichever occurs first.

2.5 KEV will rely on the conduct and representation of any person that they have the necessary authority to place an Order, accept a Quotation or otherwise direct KEV to provide goods and services to a Customer at their request.

2.6 Quotations, Price Lists and other publications and sales literature by KEV do not constitute an offer.

2.7 KEV in its absolute discretion may refuse to accept any Order.

2.8 It is the Customer’s responsibility to provide KEV with its specific requirements in relation to the goods or services.

2.9 KEV may vary these Terms by written notice to the Customer on reasonable notice. Any variations will apply to orders placed by the Customer after the date of notice.

2.10 Any typographical, clerical or other errors or omissions in any sales literature, Quotations, Prices Lists, invoices or other documents issued by KEV are subject to correction by KEV without liability.

2.11 The provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) are expressly excluded from these Terms.

3. PRICING

3.1 All prices are quoted in Australian Dollars.

3.2 Unless otherwise agreed in writing, prices specified whether by Quotation, verbally or in a Price List, for the supply of the goods and services exclude:

(a) taxes, duties or imposts on or in relation to the goods and services, including, without limitation GST or other broad-based consumption tax or value-added tax;

(b) applicable credit card and electronic payment surcharge fees that are charged by the relevant merchant to KEV;

(c) the cost of any applicable import levies and duties;

(d) the cost of freight, delivery, insurance and other charges arising from the point of dispatch of the goods from KEV’s Melbourne warehouse or direct from a supplier to the Customer’s Site;

(e) the cost of transport and accommodation for any of KEV’s personnel required in connection with the provision of any services; and

(f) any costs payable to a third-party provider by KEV, including but not limited to electricians, plumbers or installers.

3.3 In addition to payment of the price of goods or services, the Customer must pay to KEV any amounts specified in clause 3.2.

4. PRICING VARIATIONS

4.1 If the Customer requests any variation to the Agreement, KEV may, in its discretion:

(a) increase the price to account for the variation, or

(b) provide a revised Quotation for the goods or services.

4.2 Where:

(a) there is any change in the costs incurred by KEV in relation to the goods or services (including but not limited to changes in personnel or materials costs);

(b) the Customer requests or requires a different transport system for the goods to that specified (such as conveyors or lifts);

(c) the Customer fails to give KEV adequate instructions or delays in the provision of instructions; or

(d) there is any change required to the installation and layout of the goods based on the layout of the Site;

then KEV may vary its price to take account of any such change, by notifying the Customer as soon as practicable upon becoming aware of the further charges.

5. PAYMENT

5.1 Payment for the goods and services must be made by the Customer to KEV, unless otherwise specified.

5.2 KEV has two alternative payment arrangements, a Trade Account or a 30-day Credit Account.

5.3 A Trade Account gives the Customer access to discounted trade pricing. The Customer will only have access to a Trade Account where:

(a) the Customer has a valid ABN;

(b) the Customer spends a minimum of $500.00 per financial year with KEV, which will be reviewed by 1 July each year; and

(c) the Customer pays for goods and/or services at the time of purchase in store or upon delivery of goods.

5.4 A 30-day Credit Account is subject to approval by KEV in its discretion and the Customer will only have access to the 30-day Credit Account where:

(a) the Customer has a valid ABN;

(b) the Customer spends a minimum of $2,000.00 per financial year with KEV, which will be reviewed on 1 July every year;

(c) the Customer completes an Application for Credit, Credit Agreement and Deed of Guarantee, Indemnity and Charge, which are subject to approval by KEV in its discretion;

(d) the Customer’s account generates an adequate level of activity during a 6-month period, as assessed by KEV; and

(e) KEV receives payment from the Customer within 30 days from the end of the month of the date of the KEV tax invoice.

5.5 If a Customer ceases to qualify for a 30-day Credit Account, the Customer may still be able to qualify for a Trade Account.

5.6 Any deposit specified in a Quotation must be paid prior to processing. The balance of payment is required within the terms of the Trade Account or 30-day Credit Account.

5.7 Time for payment is of the essence.  Payment must be made to KEV without any deduction or set-off.

5.8 Payment for goods must be made by cash, bank cheque, credit card or direct deposit into KEV’s nominated account and payments will not be deemed to be made until clear funds are received in KEV’s account.  Receipts for payment will only be issued upon request.

5.9 The Customer will provide accurate and current account or credit card details to facilitate any debit payments and will immediately inform KEV of any changes to its account or credit card information.

5.10 The Customer will ensure that any nominated account or credit card to be debited by KEV will contain sufficient funds at all times to enable full payment to be made to KEV when required.

5.11 KEV reserves the right to delay delivery or supply of the goods or provision of the services until payments have been received in clear funds.  KEV will not be liable for any loss or damage suffered by the Customer or any third party arising out of the Customer’s failure to make timely payment for the goods or services.

5.12 Payment terms may be revoked or amended by KEV on reasonable prior written notice.

5.13 Notwithstanding the provisions of this clause 5, KEV reserves the right to require payment in full immediately upon delivery of the goods or completion of the service where provided for in a Quotation.

6. PAYMENT DEFAULT

6.1 If the Customer defaults in payment by the due date of any amount payable to KEV, or if a payment is unable to be processed due to insufficient funds or other account difficulties, then all money which would become payable by the Customer to KEV at a later date on any account, becomes immediately due and payable without the requirement of further notice to the Customer, and KEV may in its discretion, and without prejudice to any other remedy available to it:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus four (4) per cent per month on any amount outstanding for more than thirty (30) days from the end of the month of the date of the KEV tax invoice. 

(b) charge the Customer for, and the Customer must indemnify KEV from, all costs and expenses (including without limitation all legal costs and expenses on full indemnity basis) incurred by KEV resulting from the default, in taking action to enforce compliance with the Terms, to recover any goods, to enforce, protect or maintain its Security Interest in the goods or to recover any sum due;

(c) cease or suspend for such period as KEV thinks fit, supply of any further goods or services to the Customer until all amounts owing are paid in full;

(d) transfer the Customer from a 30-day Credit Account to a Trade Account;

(e) by written notice to the Customer, terminate any contract with the Customer so far as unperformed by KEV subject to applicable law;

without prejudice to KEV accrued rights under any Agreement.

6.2 Clauses 6.1(c) and (d) may also be relied upon, at KEV’s option:

(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or

(b) where the Customer is a corporation and enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator or similar functionary appointed.

6.3 The Customer acknowledges that any overdue accounts are not eligible for trade pricing, unless KEV specifies otherwise in writing.

7. PASSING OF PROPERTY

7.1 Until KEV receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to KEV by the Customer:

(a) title and property in all goods remains vested in KEV and does not pass to the Customer;

(b) the Customer must hold the goods as fiduciary bailee and agent for KEV;

(c) the Customer is required to hold the proceeds of any sale of the goods on trust for KEV in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee; and

(d) KEV may without notice, enter any premises where it suspects the goods may be and dismantle, detach and remove them (notwithstanding that the goods may have been attached to other goods not the property of KEV), and for this purpose the Customer irrevocably licences KEV to enter such premises and also indemnifies KEV from and against all costs, claims, demands or actions by any party arising from such action;

7.2 In addition to any rights KEV may have under Chapter 4 of the PPSA, until payment of all and any amounts owing by the Customer to KEV are received:

(a) the Customer will keep the goods separate until KEV has received payment in full and any other obligations owed by the Customer to KEV are met;

(b) KEV may give notice to the Customer to return the goods to KEV.  Upon receipt of such or upon such notice being given, any rights of the Customer to obtain ownership or any other interest in the goods will cease;

(c) the Customer will not encumber or charge the goods or register any Security Interest or permit any other person to register a Security Interest in the goods or grant or otherwise give any interest in the goods whilst the goods remain the property of KEV;

(d) if there is any inconsistency between KEV’s rights under this clause 7 and its rights under Chapter 4 of the PPSA, this clause 7 prevails.

8. PERSONAL PROPERTIES SECURITIES ACT

8.1 The Customer acknowledges and agrees that this Agreement is the accepted and adopted security agreement between the parties. Unless otherwise stated, a term contained in this Agreement that is defined in the PPSA (but not otherwise defined in this Agreement) has the meaning given to it in the PPSA.

8.2 The Customer acknowledges and agrees that this Agreement creates and that KEV has a Security Interest for the purposes of the PPSA:

(a) in all goods and any proceeds previously supplied by KEV to the Customer; and

(b) in all goods and any proceeds that will be supplied in the future by KEV to the Customer;

8.3 The Customer acknowledges and agrees that this Security Interest is registrable in the Personal Property Securities Register and this Security Interest secures the payment of all moneys owing by the Customer to KEV under this Agreement or otherwise.

8.4 The Customer grants to KEV where and when applicable, a purchase money Security Interest (PMSI) to the extent that it secures payment of the amounts owing in relation to the relevant goods in accordance with, and to the extent prescribed by, section 14 of the PPSA.

8.5 The Customer acknowledges and agrees the Security Interest is a continuing and subsisting interest in the goods with priority over any registered or unregistered general (or other) Security Interest and any unsecured creditor.

8.6 The Customer acknowledges that the Security Interest over the goods or their proceeds arising under this clause 8 is a PMSI under the PPSA to the extent that it secures payment of the amounts owing in relation to the goods.

8.7 The Customer will do everything reasonably required of it by KEV to enable KEV to register its Security Interest with the priority KEV requires and to maintain those registrations including:

(a) signing any documents and/or providing any information which KEV may reasonably require to register a financing statement or a financing change statement in relation to a Security Interest; or

(b) correcting a defect in a statement referred to in clause 8.7(a).

8.8 The Security Interests arising under this clause 8 will be perfected by KEV prior to or when the Customer obtains possession of the goods and the parties confirm they have not agreed that any Security Interest arising under this clause 8 attaches at any later time.

8.9 KEV does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

8.10 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under this Agreement, the Buyer agrees that sections 95, 96, 120, 121(4), 123, 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of the Security Interest(s).

8.11 The Customer agrees not to disclose to an ‘Interested person’ (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including the security agreement between KEV and the Customer,

8.12 The Customer agrees to keep and maintain all goods free of any charge, lien, or Security Interest except as created under this Agreement and not otherwise to deal with the goods in a way that will, or may, prejudice the rights of KEV under this Agreement or the PPSA.

8.13 The Customer irrevocably grants to KEV the right to enter any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if KEV has cause to exercise any of its rights under the PPSA, and the Customer agrees to indemnify KEV against any such liability.

8.14 The Customer must notify KEV immediately in writing if the Customer changes its name and address for service, contact details or if there are any changes to data required to register a financing statement under the PPSA in respect of this Agreement.

9. RISK AND INSURANCE

9.1 Unless otherwise agreed in writing, the risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being delivered to the Site.

9.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods or services supplied by KEV to the maximum extent permitted by law.

10. ACKNOWLEDGMENTS

10.1 The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by KEV in relation to the goods or services or their use or application.

(b) it has the sole responsibility of satisfying itself that the goods or services are suitable for the Customer’s use or contemplated use.

(c) any description of the goods provided in a Quotation, invoice or other marketing materials is given by way of identification only and does not constitute a contract of sale by description.

11. CUSTOMER’S OBLIGATIONS

11.1 The Customer is responsible for ensuring the accuracy of its contact information any specifications and requirements in respect of the goods and services and for giving KEV any necessary information relating to the goods and services within a reasonable time.

11.2 The Customer must:

(a) make the Site available to KEV by the Anticipated Installation Date specified in the Quotation to enable delivery and/or installation of the goods;

(b) allow KEV ‘s servants and agents unencumbered and uninterrupted access to the goods at all reasonable times to deliver, install, dismantle, detach, remove, inspect, test, adjust, maintain, repair or replace goods supplied.;

(c) be responsible for providing clean, safe and proper access to and at the Site;

(d) ensure the Site is properly prepared for installation, and is ready to receive the goods and services; and

(e) ensure that it has suitable protection and insurance for the goods from the time of delivery.

12. DELIVERY AND INSTALLATION

12.1 KEV will arrange for the delivery of the goods to the Customer, at the Customer’s cost, and delivery of the goods to the Customer’s agent, carrier or representative shall constitute delivery to the Customer.

12.2 KEV will organise third-party installation of goods, where requested by the customer. The cost of any third-party installation will be payable by the Customer in addition to the price of the goods. organized by KEV.

12.3 KEV will not be liable for any costs, damage, losses, expenses or claims arising out of the installation of any goods by a third-party supplier and the Customer unconditionally indemnifies KEV in respect of same.

12.4 The Customer indemnifies KEV against

(a) any loss or damage suffered by KEV, its sub-contractors or employees as a result of delivery and installation, or frustrated or delayed delivery, except where caused by KEV ‘s negligence;

(b) any costs incurred by KEV arising from delivery delays requested or caused by the Customer.

12.5 If the Customer is to collect the goods itself from KEV, then the Customer must arrange, at its own cost in addition to the amount indicated in any Quotation, for collection of the goods from KEV ‘s premises within seven (7) days of notification that the goods are ready.  If the Customer does not collect the goods within this time, then the Customer will be deemed to have taken delivery from such date and may be liable for storage charges payable weekly on demand or a re-stocking fee, to be advised on a case by case basis.

12.6 If the Site is not ready by the Anticipated Installation Date or the Customer has not notified KEV to vary the Anticipated Installation Date, the Customer will be deemed to have taken delivery of the goods from the Anticipated Installation Date. The Customer will be liable for storage charges payable weekly on demand at the discretion of KEV.

12.7 Any period or date for delivery of goods or provision of services stated by KEV is intended as an estimate only and is not a contractual commitment. KEV will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.

13. LIABILITY

13.1 Except as specifically set out herein, or contained in any manufacturer’s warranty statement provided with the goods or services (“Warranty”) , any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded to the maximum extent permitted by law.

13.2 Repair or replacement of the goods, or part of the goods, or re-supply of the services is the absolute limit of KEV ‘s liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods or services by the Customer or any third party to the maximum extent permitted by law.

13.3 KEV is not liable for:

(a) any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party;

(b) any loss or damage suffered by the Customer or any third party where KEV has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services;

(c) unauthorised repair or negligent handling, or defects due to lack of care neglect or accident by the Customer, or assigned user or agent of the Customer, including but not limited to storage, handling or cleaning of the goods;

(d) personal injury, property damage, consequential or economic loss, however caused.

(e) the goods have been modified, repaired or serviced by someone other than KEV or authorised by KEV; or

(f) the goods have been subject to abnormal conditions, whether of temperature, water, humidity, pressure, stress or similar.

13.4 To the maximum extent permitted by law and other than the Warranty stated above, KEV makes no representations or warranties of any kind whatsoever express or implied in respect of the goods.

13.5 All Warranty claims must be made within the timeframe stipulated in any Warranty for the warranty to be honoured by KEV.

13.6 If a defect appears in the goods or services before the end of the Warranty period and KEV finds the goods or services to be defective in materials or workmanship, KEV will, in its sole discretion, either:

(a) replace or repair the goods or the defective part of the goods free of charge;

(b) cause the goods or the defective part of the goods to be repaired or replaced by a qualified repairer free of charge;

(c) re-supply the goods or services or part thereof; or

(d) refund the purchase price of the goods or services to the Customer.

13.7 If a fault covered by Warranty occurs, the Customer must contact KEV by sending an email to [email protected] and provide details of the warranty claim and proof of purchase.  KEV will, where possible, assess the claim over the telephone or send the Customer a warranty assessment form to determine if the Warranty applies.

13.8 Provided that the claim is made within the Warranty period and the Warranty applies, the goods will be returned to KEV by the Customer and all costs associated with the return and repair of the goods will be borne by KEV.

13.9 Where the goods must be commissioned by KEV at the premises of the Customer, the Customer will be liable to pay for any travelling and accommodation costs incurred by KEV in the recommissioning of goods at the Customer’s premises

13.10 The cost of repaired or replaced goods and all labour associated with same, including the recommissioning of the goods will be borne by KEV.

13.11 The Warranty is limited to defects in the materials or workmanship of the goods or services and does not cover expendable parts or the replacement of parts due to fair wear and tear.

13.12 KEV goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

13.13 Where a warranty claim is made which is assessed and determined not to be covered by a Warranty, the Customer will be liable for any third-party service fee incurred by KEV in having the claim assessed by a third party, which will be advised to the customer by KEV before any assessment is undertaken.

14. RETURNS

14.1 Subject to the ACL and to clause 13.3, KEV will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless:

(a) the Customer notifies KEV with full details within 7 days of delivery specifying the shortage or defect; and

(b) KEV is given the opportunity to inspect the goods and services and investigate the complaint before any further dealing.

14.2 If the Customer fails to give the notice as required in clause 14.1(a) it is deemed to have accepted the goods and services and will be bound to pay for them.

14.3 Where KEV accepts any claim for defects, shortages, damage or non-compliance with the Agreement, KEV may, at its option, repair or replace the goods, re-supply the services, or refund the price of the goods or services.

14.4 KEV will not, under any circumstances, accept goods for return that:

(a) have not been stored or handled in accordance with KEV’s instructions or any legislative requirements;

(b) have been specifically produced, imported, exported or acquired to fulfil any Order by the Customer; or

(c) have been altered in any way.

14.5 The Customer must obtain KEV ‘s prior written approval for the return of goods and pay all freight charges associated with return or any applicable re-stocking fees.

14.6 Where goods are found not to be defective or are not covered by an applicable Warranty, any costs incurred by KEV associated with inspection or assessment of the goods at the customer’s premises are payable by the Customer on demand by KEV.

15. FORCE MAJEURE

15.1 KEV shall have no liability whatsoever under these Terms to the extent that such fulfilment is prevented by circumstances beyond its reasonable control, including but not limited to:

(a) industrial disputes, strikes, lockouts;

(b) accident or breakdown;

(c) import or export restrictions and embargoes;

(d) act of God, explosion, flood, tempest or fire;

(e) act of terrorism, act of war, sabotage, insurrection, civil disobedience or requisition;

(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery.

15.2 If an event of force majeure occurs, KEV may terminate this Agreement by written notice to the Customer.

16. MISCELLANEOUS

16.1 The law of Victoria from time to time governs the Terms.

16.2 Failure by KEV to enforce any of these Terms shall not be construed as a waiver of any of KEV ‘s rights.

16.3 If any of the Terms are unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, the term must be severed from these Terms without affecting the enforceability of the remaining terms.

16.4 A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed to be received upon the sender’s communications machine confirming such transmission.

16.5 The parties may agree for KEV to provide additional goods or services from time to time.  Any varied or additional goods and services will be provided in accordance with these Terms and such other terms as may be agreed.