1. Definitions and Interpretations
1.1. In these Terms and Conditions of Sale:
(a) "ACL" means the Australian Consumer Law, as contained in the Competition and Consumer Act 2010 (Cth);
(b) "Customer” means the person acquiring Goods from SKA;
(c) "SKA" means Australian Karting Promotions Pty Ltd, ABN 21 647 290 743 trading as Sodikart Australasia and includes it’s directors, officers, employees and associated companies;
(d) "Goods" means items quoted and any associated goods, equipment, inventory, accessories, parts, services and tools supplied by SKA to the Customer;
(e) "GST" has the same meaning as under the GST Law and means the Goods and services Tax imposed under the GST Law;
(f) "GST Law" means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(g) "PPSA" means the Personal Property Securities Act 2009 (Cth);
(h) "PPSR" means the Personal Property Securities Register;
(i) "Terms” means these Terms and Conditions of Sale.
(j) Words importing the singular includes the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.
2.1. Unless agreed by SKA in writing, these Terms apply to the supply of all Goods by SKA to the Customer.
2.2. These Terms supersede and exclude all prior and other discussions, representations, (contractual or otherwise) and arrangements relating to the supply of Goods by SKA to the Customer.
2.3. These Terms cannot be varied or replaced by any other terms, including the Customers terms and conditions.
2.4. A contract will only be or be deemed to have been entered into between the Customer and SKA for the supply of the Goods when:
(a) an order been accepted by SKA in writing; or
(b) SKA supplies Goods to the Customer, whichever occurs first (“Contract”).
3.1. SKA has absolute discretion to refuse to supply Goods to the Customer.
3.2. The Customer shall have no recourse whatsoever against SKA for any loss or damage suffered by it as a result of SKA's refusal to supply Goods.
3.3. If at any time the Customer defaults in respect of its payment obligations under these Terms, SKA may cancel or suspend any incomplete order that has been accepted by it and the Customer shall have no recourse whatsoever against SKA for any loss or damage suffered by it as a result of SKA's cancellation or suspension of the supply of Goods.
4.1. The amount payable for Goods will be the price on SKA's invoice plus any duties, fees, taxes (including GST) and delivery charges arising out of the Contract.
4.2. The time specified for payment is of the essence.
4.3. The Customer shall pay for all Goods by cash or cleared funds in advance of delivery.
4.4. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.5. No credit shall be granted or deemed to have been granted unless by agreement in writing from SKA in accordance with Clause 6.
4.6. Any payments tendered by the Customer to SKA shall be applied as follows:
(a) Firstly, to reimburse SKA for any collection fees or commissions, administrative costs, out of pocket expenses and legal costs payable under these Terms;
(b) Secondly, towards any credit charges debited or chargeable to the Customer’s account;
(c) Thirdly, in payment for Goods purchased by the Customer (such payments being applied in the order of the age of such purchase commencing with the oldest purchase).
4.7. If the Customer defaults in payment by the due date of any amount payable, then all money which is payable by the Customer to SKA at a later date on any account, becomes immediately due and payable and SKA may without prejudice to any other right it may have charge the Customer interest on any amount due at a rate being two percentage points higher than the rate prescribed by section 2 of the Penalty Interest Rates Act 1983 (Vic).
5.1. The Customer is responsible for all costs associated with delivery, including without limitation freight, insurance and other charges of dispatching the Goods to the point of delivery.
5.2. The applicant acknowledges that unless otherwise advised, SKA will organise freight on behalf of the Customer subject to the Customer paying for the freight and insurance upon receipt of the Goods and the Customer agrees to reimburse SKA and indemnify it in respect of all costs associated with the freight and insurance of the Goods.
5.4. Delivery of Goods shall be deemed to have occurred on the happening of the first of the following events:
(a) upon collection of the Goods from SKA’s premises by a person authorised by the Customer or a person who holds himself out as having such authority; or
(b) upon collection of the Goods by or delivery of the Goods to a carrier nominated by the Distributor; or
(c) upon delivery of the Goods to the Distributor’s premises or nominated address for delivery.
5.5. The risk of any loss or damage to the Goods passes from SKA to the Customer on delivery of the Goods to the Customer.
6.1. SKA may, in its absolute discretion grant credit to the Customer on such terms and conditions as it requires.
6.2. SKA will not grant the Customer credit unless the Customer first completes a credit application in a form approved by SKA.
6.3. Notwithstanding extension of credit to the Customer, SKA may impose any payment term it desires including without limitation, requiring the Customer to pay a deposit upon acceptance of an order in which case acceptance of the order is conditional upon receipt of the deposit.
6.4. The Customer irrevocably authorises SKA, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer and/or its directors from time to time including the making of enquiries with persons nominated as trade references, the bankers of the Customer, any other credit provider or a credit reporting agency (hereinafter called "Information Sources").
6.5. To the extent permitted by the relevant privacy laws, the Customer:
(a) authorises the Information Sources to disclose to SKA such information concerning the Customer which is within their possession and which is required by SKA; and
(b) agrees that the information provided on any credit application, signed by the Customer may be disclosed by SKA to a credit reporting agency or any other interested person.
6.6. The Customer acknowledges that any credit application approved by SKA for the Customer related to trading between SKA and the Customer is granted by SKA on the basis of its reliance on information supplied by and representations made on behalf of the Customer and, in particular, on the information disclosed by the Customer in relation to the ownership of the Customer.
6.7. Any credit facility granted by SKA to the Customer shall continue until terminated by SKA at its sole discretion by written notice to the Customer.
6.8 The Applicant agrees and authorises SKA to disclose the information contained in this Credit Application and arising out of the operation of Account that it opens in the name of the Applicant to a credit reporting agency in accordance with the provisions of the Privacy Act 1988 (Cth) (as amended) including without limitation the fact that an Account has been applied for and the amount of credit applied for, details of any payments which had become overdue for more than 60 days for which collection action has commenced, any cheques that have been written that have been dishonoured more than once, advice that payments are no longer overdue and that the credit that has been provided has been discharged.
6.9. Neither the Applicant nor any of its Directors or associates have been bankrupt or taken advantage of Part X of the Bankruptcy Act 1966, or have been involved with the management or control of a business which has been wound up, had receivers appointed or entered into a scheme for the benefit of its credits, except as notified in full detail to SKA.
7.1. The Customer acknowledges that each of these events or circumstances is a default event ("Default Event"):
(a) the Customer failing to duly or punctually perform or observe any provision contained in these Terms after the expiration of seven days prior written notice to the Customer to remedy the same;
(b) the Customer, or if more than one person in partnership, any member of that partnership commits any act of bankruptcy prescribed in the Bankruptcy Act 1966 (Cth);
(c) the Customer becoming insolvent, an order or resolution being made for the winding up of the Customer, a receiver or manager or receiver and manager being appointed in respect of any of the assets of the Customer, the Customer being placed under official management or the Customer entering into administration or a scheme of arrangement or composition with its creditors or any class thereof;
(d) the Customer being a natural person, dies or becomes of unsound mind or permanently disabled;
(e) the Customer ceases or threatens to cease to carry on all, or substantially all, of its business or operations;
(f) the Customer undergoes a change in its control or ownership where that change is not approved by SKA in writing.
(g) the Customer parts with possession of the Goods or any of them otherwise than by sale in the ordinary course of business.
(h) If credit is granted to the Customer and the Customer:
(i) fails to pay for Goods sold to it by the date due pursuant to any credit granted (“Due Date”); or
(ii) purchases Goods so as to extend its indebtedness to SKA beyond the credit limit set by SKA.
7.2. The Customer must give SKA full details of any Default Event as soon as it becomes aware that the Default Event has occurred.
7.3. In addition to SKA’s other rights, at any time after a Default Event occurs:
(a) SKA may:
(i) cease or suspend supply of any further Goods to the Customer;
(ii) charge the Customer for:
1. all costs and expenses (including without limitation legal costs and expenses) incurred by SKA in taking action to enforce compliance with the Terms or to recover any Goods;
2. all collection fees and commissions, administrative costs, out of pocket expenses and legal costs (calculated on a solicitor and own client basis) incurred by SKA as a direct or indirect consequence of such Default Event;
(b) the whole of the sum then owing by the Customer to SKA for all Goods sold by SKA to the Customer shall immediately become due and payable; and
(c) the Customers credit shall be forfeited unless SKA has otherwise agreed in writing.
8. Retention of Title
8.1. Notwithstanding that the risk in the Goods passes to the Customer on delivery of the Goods to the Customer, legal and equitable title remains with SKA until payment in full for all debts accrued or owed to SKA is received.
8.2. Until title to the Goods passes, the Customer must:
(a) insure the Goods for their full replacement value and the Customer must note SKA’s security interest as owner of the Goods on the insurance policy;
(b) not create or allow to be created any security interest (as defined by the PPSA) or any other form of encumbrance over the Goods;
(c) not claim any lien or interest in the Goods to secure any debt or obligation that SKA may owe to the Customer; and
(d) must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods, except that the Customer may sell or use up the Goods in the ordinary course of the Customers ordinary business as SKA’s fiduciary and agent (but the Customer shall not hold itself out as such) and may, for the purpose of any such sale, part with possession of the Goods.
8.3. These provisions apply notwithstanding any arrangement under which SKA provides credit to the Customer. To the extent that there is any inconsistency between these Terms and any credit terms, these provisions shall prevail.
8.4. If payment for the Goods is not made by the Customer by the Due Date specified by SKA to the Customer, then the Customer hereby authorises SKA to enter upon the premises where the Goods are located without being liable for trespass and to use such reasonable force as may be necessary to gain entry for the purpose of recovery of the Goods in accordance with these Terms.
8.5 Until such time a payment is received in full for the goods:
(i) these terms and conditions create a Purchase Money Security Interest in such Goods in favour of SKA, as security for the Customers obligations to SKA
(ii) Such goods must be stored in a manner that allows them to be identified as SKA Goods
9. Personal Property Securities Act 2009
9.1. The Customer irrevocably consents to SKA registering its security interest (as defined under PPSA) on the PPSR to note its interest under these Terms.
9.2. The Customer must do all things (including signing any document) and provide all information necessary to enable SKA to perfect and maintain the perfection of any and each security interest granted to SKA by the Customer.
9.3. If required by SKA, the Customer must pay all costs associated with the registration, maintenance and withdrawal of any security interest on the PPSR which secures the Customers obligations under any agreement with SKA.
9.4. If required by SKA, the Customer agrees to immediately execute a charge over all of its circulating and non-circulating assets (as defined in the PPSA) and/or any other instrument of security, in terms satisfactory to SKA.
9.5. SKA’s title to the Goods remains absolute even if the Goods have become fixtures to the premises of the Customer or another party or if the Goods become comingled in any way.
9.6. Until title in the Goods passes to the Customer, the Customer will keep and maintain all Goods free of any charge, lien or security interest except as created under the Terms and not otherwise, deal with the Goods in a way that will or may prejudice the rights of SKA under the Terms or the PPSA.
9.7. The Customer waives its rights to receive notices of:
(a) the removal of an accession under section 95 of the PPSA;
(b) a proposal to dispose of secured property under section 130 of the PPSA;
(c) a statement of account under sections 132(1) and 132(4) of the PPSA;
(d) any other occurrence in respect of which the parties agree to waive notice under the PPSA at any time.
9.8. The Customer also waives its right:
(a) to redeem secured property under section 142 of the PPSA; and
(b) to reinstate this agreement under section 143 of the PPSA.
9.9. The rights and powers conferred on SKA by these Terms are in addition to any rights and powers conferred by the PPSA.
9.10. For the avoidance of doubt, in addition to the powers under section 125 of the PPSA, SKA may take any action after default authorised by these Terms or law, including delaying any disposal, leasing or action to retain any secured property.
9.11. The Customer waives its rights to receive notice from SKA of a registration event under section 157(1) of the PPSA.
10.1. The Customer will inspect the Goods immediately upon delivery of the Goods.
10.2. The Customer must notify SKA of any claim in writing within seven days of the date of delivery or collection of the Goods and the Customer will be deemed to have accepted the Goods or invoices if the Customer fails to notify SKA in accordance with this clause 10.2.
10.3. The Customer acknowledges that SKA is not obliged to accept returned Goods if the Customer has not notified the SKA in accordance with clause 10.2
10.4. The Customer must allow SKA full and free access to the Goods to which a claim is made (or the place where the Goods have been applied or used) for the purpose of conducting such tests and examinations as SKA may in its absolute discretion consider necessary to determine whether or not the claim is justified.
10.5. Notwithstanding clauses 10.2 and 10.3, SKA may choose at its sole discretion to accept a return of Goods and, if SKA accepts the return of the Goods notwithstanding that the Customer has not complied with clause 10.2, to the extent permitted by law, the Customers sole recourse shall be a credit of an amount equal to ninety percent of the price at which the Goods were sold by SKA to the Customer.
10.6 In the instance where a Customer has placed a “Special order “with SKA, no refunds or credits are available.
11. Exclusion and limitations
11.1. Nothing in these conditions will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
11.2. Any term contained herein which limits or excludes any term, condition or warranty, express or implied, or the liability of SKA shall apply to the extent permitted by law and shall not be construed as excluding, qualifying or limiting the Customers statutory rights or remedies arising by virtue of the breach of any implied term where such exclusion, qualification or limitation would be prohibited by law.
12. Liability and Representations
12.1. To the extent permitted by law:
(a) The only conditions and warranties which are binding on SKA in respect of the state, quality or condition of the Goods supplied by it to the Customer are those imposed and required to be binding by law (including the ACL);
(b) All warranties, terms and conditions in relation to the state, quality or fitness of the Goods and of every other kind whether expressed or implied by use, statute or otherwise are excluded.
12.2. The Customer acknowledges that:-
(a) it has undertaken its own inspections, made its own independent enquiries in reaching its decision to purchase the Goods.
(b) prior to taking delivery of the Goods, the Customer conducted a thorough examination of the Goods;
(c) no warranty, condition, description or representation in relation to the Goods is given by the SKA, expressly or implied by these Terms or outside these Terms;
(d) it has not relied on any representation made by the SKA including without limitation representations relating to the performance of the Goods or any part of the Goods or the result that ought to be expected from using the Goods.
12.3. To the extent permitted by law, SKA’s obligations to the Customer in respect of a breach of any Contract or warranty (whether implied by law or otherwise) will at SKA’s option, limited to:
(a) The cost of replacing the Goods;
(b) The cost of repair of the Goods; or
(c) The crediting of the Customers account by SKA with credit in an amount equal to 90% of the price that the Customer paid SKA for the Goods.
12.4. Under no circumstances and to the extent permitted by law will SKA be liable to the Customer for indirect, consequential or economic loss or loss of profits howsoever arising.
12.5. To the extent permitted by law, SKA shall have no liability (including liability in negligence) to any person for any loss or damage, consequential or otherwise, howsoever suffered or incurred by any such person in relation to the Goods sold by SKA to the Customer, and without limiting the generality thereof, any loss or damage consequential or otherwise howsoever Suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the Goods or associated with delayed delivery.
12.6. To the extent permitted by law, the Customer hereby indemnifies SKA and shall keep SKA indemnified in respect of any loss or damage, consequential or otherwise howsoever suffered or incurred by any person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the Goods.
13. Customer Changes
13.1. The Customer acknowledges :-
(a) that if it changes the entity under which it trades, it shall be its responsibility to notify SKA of such change and to separately negotiate conditions of sale under which the new entity may commence trading with SKA;
(b) that until a new trading arrangement with the new entity has been negotiated and accepted by SKA in writing:-
(i) the Customer shall remain liable for payment to SKA for all Goods ordered or purchased by such new entity;
(ii) it shall not be open for the Customer to raise as a defence in any proceeding commenced by SKA for the recovery of such sums owing to SKA under these Terms that the debt was incurred by a person other than the Customer.
13.2. The Customer shall notify SKA of any change in the composition of its directors, shareholders, partners or principals within 14 days of such change taking effect. Upon receipt of such advice, SKA may require at its discretion any new director, shareholder, partner or principal of the Customer to execute a personal guarantee and indemnity in respect of the Customers obligations hereunder.
13.3. The Customer shall notify SKA of any change in its address not later than 7 days prior to such change occurring.
14. Unauthorised Purchases
14.1. The Customer warrants to SKA that it shall take reasonable steps to ensure that unauthorised persons are prevented from making unauthorised purchases ("Unauthorised Purchase")
14.2. The Customer acknowledges that:-
(a) it is not possible for SKA to ascertain whether a person seeking to purchase Goods from SKA for the Customer on credit has the authority of the Customer to do so;
(b) it shall remain liable to SKA to pay for any Unauthorised Purchases;
(c) it accepts the risk that it may become liable for Unauthorised Purchases made by a person not authorised by the Customer;
(d) it is aware that it can insure against the risks associated with Unauthorised Purchases.
14.3. The Customer agrees to indemnify SKA and to keep SKA indemnified against all loss or damage that SKA may sustain as a result of any Unauthorised Purchase.
15. Force Majeure
If for any cause beyond SKA's control, including but without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award, enactment, priority or restriction, fire, flood, storm or tempest, delay in obtaining licences, transport, labour, or materials, accidents, damage to SKA's works or business or those of its suppliers, SKA is prevented from delivering Goods at the time stipulated or performing an obligation under these Terms, SKA will be entitled at its option either to extend the time for delivery or performance for a reasonable period or to rescind the contract and the Customer will not have any claim for damages of whatsoever nature and must pay to SKA the cost for all Goods delivered and/or services performed prior to the date of such rescission including all expenses incurred and monies paid by SKA in connection with the Contract without set-off or deduction.
No waiver by SKA of any breach of these Terms shall operate as a waiver of another breach of the same or any other Terms and the doing and/or omission of any act, matter or thing by SKA, its servants or agents (which, but for this clause ought or might amount to a waiver of SKA’s rights in respect of any such breach or default) shall not operate nor be deemed to be a waiver in any way of SKA’s rights and powers in respect of such breach or default, any rule of law or equity to the contrary notwithstanding.
17.1. These Terms and any contract between SKA and the Customer are governed by and will be interpreted in accordance with the laws of Victoria, Australia.
17.2. The Terms, the Contract and where applicable, any terms contained in SKA's credit application constitute the entire agreement between the parties.
17.3. SKA may vary or waive any or all of the Terms at any time.
17.4. The Customer must not assign any of its rights or obligations under the Terms without the prior approval of SKA.
17.5. The Customer will not assert any right of set-off against SKA and will pay all sums due and payable to SKA without deduction.
17.6. If all or part of a clause in the Terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of any other provision.
17.7. If SKA does not exercise a right or remedy fully or at a given time, SKA may still exercise it later.
17.8. SKA will not be liable for any loss caused by the exercise or attempted exercise, or failure to exercise or delay in exercising its right or remedy under the Terms.
17.9. The rights and remedies of SKA under these Terms are in addition to other rights and remedies available to SKA at law.
17.10. No rule of construction applies to the disadvantage of SKA because SKA was responsible for the preparation of the Terms or any other agreements between the parties.