Terms And Conditions Of Sale
Avation PTY LTD(“the company”) contracts with the customer solely on the following terms and conditions (save to the extent expressly otherwise agreed to in writing):
A) The Company will provide goods to the Customer in coordance with the terms of this agreement.
B) The Company will issue an invoice to the Customer after supply of the goods; and
C) The Customer agrees to pay the invoice within thirty days after the end of the month in which the invoice was issued.
- Reference to:
- one gender includes all the others
- the singular includes the plural, the plural includes the singular
- a person includes a body corporate;
- a party includes the party’s executors, admimistrators, successors and permitted assigns;
- a statue, regulation or provision of a staute or regulation (“statutory provisions”) incl.:
- the statutory provision as amended or re-enacted from time to time; and
- a statue, regulation or provisions enacted in replacement of that staturoy provision;
- time is a reference to Brisbane, Australia time;
- money (including “$”, “AUD” or “dollars”) is to Australian currency; and
- any thing (including any amount or any provision of this Agreement) is a reference to the whole and each part of it.
- A party which is a trustee is bound both personally and in its capacity as a trustee.
- The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation.
- The word “costs” includes charges, expenses and legal costs
- Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- Headings and the table of contents are for convenience only and do not form part of these Terms and Conditions or affect its interpretation.
- If a period of time is specified and dated from a given day or the day of an act or event, it is to be calculated exclusive of that day Customer is liable.
- The time between two (2) days, acts or events includes the day of occurrence or performance of the second but not the first act or event.
- If an act must be done on a specified day which is not a business day, the act must be done instead on the next business day.
- Reference to:
- Credit Application
- The Customer warrants that the information provided in this Agreement is correct and agrees to notify the Company in writing of any changes to the information provided within seven (7) days of change
- The Customer acknowledges that the Company in assessing this Application will act in reliance on the information provided.
- The Customer acknowledges that it has been granted a credit up to the sum of $_________
- PERSONAL INFORMATION
The Customer agrees to the Company obtaining from a credit reporting agency a credit report containing personal credit information about the Customer as the Company considers relevant for the assessment of this Application
The Company will issue to the Customer an invoice for goods supplied and/or services rendered (“the Invoice”)(“the Invoice”)
- The Customer agrees to make full payment of the Invoice within 30 days after the end of the month that the invoice is issued (“the Due Date”), unless otherwise agreed to in writing
- The Customer must pay the amount of the Invoice to the Company unless a lawful direction to pay some third party is received by or on behalf of the Customer
- RETENTION OF TITLE
- Property in the goods does not pass to the customer until the price is paid in full to the company. The customer acknowledges that it holds the goods as bailee of the company until such time as the purchase price is paid in full. The goods are subsequetly purchased, hire charges will accrue until such time as the purchase price is paid in full.
- At all times. The customer is obliged to store the goods to which this invoice refers, such they are clearly identifiable as the property of Avation PTY LTD ACN 142 137 397
- The customer agrees that the right to enter any premises upon which the goods so held are stored for the purpose of retaking possession of and removing the goods or for any other pupose or purposes necessary for or incidental to the enforcement of the company’s rights. The customer further agress that in the event the company exercises the right of entry contained herein, the customer shall indemnify and keep indemnified the company in respect of any costs, charges or expenses incureed by the company in the exercise of such rights.
- DEFAULT AND LATE PAYMENTS
In the event that the Cusomter defaults in making payment to the Company in accordance with the Terms and Conditions set out in clause 5 above, the Company may in its absolute discretion take the following steps:
- The Company is entitled to charge interest calculated on the portion of the Customer’s overdue amount at the rate of 2.5% per calender month from the due date
- If payment is not received within fourteen (14) days after the Due Date, the Company will take legal action to recover the outstanding amounts. All costs including debt collection commissions, legal fees and any other expenses resulting from the Customer’s default will be the liability of the Customer.
- The Customer’s credit limit will be reviewed periodically and may be revoked at any time due to poor payment history, upon which all amounts owing to the Company must be paid immediately.
- VARIATIONS TO TERMS AND CONDITIONS
The Company reserves the right to vary these Terms and Conditons at its absolute discretion.
- DIRECTORS’, INDIVIDUALS AND TRUSTEES’ GUARANTEE
- This clause applies if the Customer is a company or alternatively if the Customer is an individual, or if the Customer is an individual signing on behalf of a trust
- In consideration of the credit facilities provided by the Company to the Customer, the Customer’s director(s), or in the case of an individual then the person signing this agreement as a Guarantor for the Customer or in the case of a trust, the trustee signing on behalf of a trust (“the Guarantor”) agrees to guarantee the due and punctual payment by the Customer to the Company of all amounts (including damages) that are payable, owing but not payable, or that otherwise remain unpaid by the Customer to the Company of any account at any time under or in connection with the credit facilities whether present or future, actual or contingent or incurred alone, jointly, severally, or jointly and severally and without regard to the capacity in which the Customer is liable (“the Guaranteed Moneys”) or in the case of a trust, the trustee guarantees that the trust is liable to pay all and any money’s payable, as detailed in this paragraph, for which the Customer is liable.
- This Guarantee:
- is a principal obligation and is not ancillary or collateral to any other right or obligation however created or arising;
- may be enforced against the Guarantor without the Company first being required to exhaust any remedy it may have against the Customer or to enforce any security it may hold relating to the Guaranteed Moneys;
- is a continuing guarantee and indemnity for the whole of the Guaranteed Moneys; and
- is absolute, unconditional and irrevocable, and remains in full force and effect until the Guaranteed Moneys have been irrevocably paid in full despite any transaction or other thing (including a settlement of account or intervening payment).
- If the Customer becomes insolvent, the Guarantor authorise the Company to prove all moneys which the Guarantor has paid under this guarantee and to retain and to carry into a suspense account and appropraite at the discretion of the Company and dividends received in relation to the Guaranteed Moneys until the Guaranteed Moneys have been irrevocably paid in full.
- If the whole or part of the Guaranteed Moneys is not recoverable by the Company for any reason whatsoever then:
- the Guarantor as a separate and severable liability under this guarantee unconditionally and irrevocably indemnifies the Company in respect of the Guaranteed Moneys;
- as a principal debtor, the Guarantor agrees to pay the Company, on demand in writing, a sum equal to the amount of the Guaranteed Moneys; and
- for the purpose of this indemnity, this clause must be construed as if the Guaranteed Moneys were recoverable and the terms of this guarantee apply as far as possible to this indemnity
- Where this guarantee is given by more than one person, the obligation on the part of the Guarantor contained in this guarantee take effect as joint and several obligiations and references to the Guarantor take effect as referecne to those persons or any of them. This guarantee binds each of the pesrons executing it and a release by the Customer of any Guarantee from this guarantee will not affect the liability of the other Guarantees
- ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement between the parties concerning the matters dealt with pursuant to these Terms and Conditions. For the avoidance of doubt, these Terms and Conditions supercedes all provisions, covenants, agreements, warranties, representations, negotiations and understanding with respect to the matters dealt with in these Terms and Conditions, to the maximum extent permitted by law.
- WARRANTY CLAIMS
a. Upon receiving written notice of any claim for a defect in Equipment covered by the relevant Manufacturer’s Warranty or at law (RMA Product), AVATION will issue to the Dealer a Return Material Authorization (RMA) number.
b. The Dealer is responsible for shipping any RMA Product, prepaid, to AVATION’s repair facility. Original packaging or similar packaging must be utilised to prevent damage. Repaired material shall be shipped by AVATION to the Dealer at the cost of AVATION.
c. Upon receipt of the RMA Product, AVATION shall inspect and test it. If AVATION, in its reasonable judgment, determines that the hardware is defective and covered by the Manufacturer’s Warranty or required to be repaired at law, AVATION shall procure the repair or replacement of the Product in accordance with the Manufacturer’s Warranty or the law as the case may be.
- Fully permitted by law, AVATION’s liability under any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied into this agreement by any legislation (Statutory Warranties) is hereby excluded.
- Where AVATION is liable under any Statutory Warranties, and any legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such Statutory Warranties, AVATION’s liability for any breach of such Statutory Warranties shall be limited, at AVATION’s option, to one or more of the following:
- If the breach relates to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the cost of replacing the goods or of acquiring equivalent goods; or the cost of having the goods repaired; and
- If the breach relates to services: the supplying of the services again or the cost of having the services supplied again, and AVATION shall have no other liability for any loss or damage of any kind including, without limitation, any direct, indirect, consequential, special or exemplary loss or damage, howsoever arising, whether in contract, tort or otherwise arising from or in connection with the Products, the use of the Products or any defects in its Products. The Dealer acknowledge and agree that reliance by AVATION on this limitation of liability is fair and reasonable in all the circumstances.
- To the maximum extent permitted by law, the total aggregate liability of AVATION arising under or relating to this agreement in respect of any Product is limited to an amount equal to the amount paid by the Dealer for that Product. Neither party shall be liable to the other party for any indirect, consequential, special or exemplary loss or damage.
- CONFIDENTIALITY OBLIGATIONS
- Confidential Information means, in the case of AVATION:
- Information of a confidential nature concerning the Products including, without limitation the technical design, features and specifications of the Products;
- Data concerning customers and sales of Products in the Territory (whether provided by AVATION or the Dealer);
- Industry information, marketing plans, trade secrets, commercially sensitive information and confidential know-how relating to the Products; and
- Financial and business information of AVATION.
- Confidential Information means, in the case of the Dealer, the financial and business information of the Dealer.
- Each Party agrees to ensure that the Confidential Information of the other party (Disclosing Party) is kept confidential.
- A party who receives the Disclosing Party’s Confidential Information (Receiving Party) must not:
- Directly or indirectly divulge or communicate or otherwise disclose the Confidential Information of the Disclosing Party, in whole or part, to any third party; or
- Use of any of the Confidential Information of the Disclosing Party for any purpose other than exercising its rights or fulfilling its obligations under this agreement, without the express prior written consent of the Disclosing Party.
- A Receiving Party must:
- Take all precautions that are reasonably necessary to prevent any unauthorised disclosure of the Disclosing Party’s Confidential Information to third parties or unauthorised use of such Confidential Information; and
- Inform the Disclosing Party of any suspected or actual unauthorised disclosure or use of such Confidential Information.
- A Receiving Party will not be in breach of its obligations with respect to disclosure of the Disclosing Party’s Confidential Information if it discloses information that:
- Is, or subsequently enters, the public domain, other than through a breach by it of its obligations
- It is required to disclose by statute, court order or a person acting under the authority of statute or such order;
- Was developed independently by it, without the use of any of the Disclosing Party’s Confidential Information; or
- Was provided to it by a third party who was not subject to any obligation or duty of confidentiality at the time it was provided to the Receiving Party.
- Confidential Information means, in the case of AVATION: