KWIKTECH PTY LTD STANDARD TERMS AND CONDITIONS OF SALE
THESE STANDARD CONDITIONS OF SALE (“CONDITIONS”) CONSTITUTE A LEGALLY BINDING AGREEMENT MADE BY KWIKTECH PTY LTD ACN 627 012 819 (“KWIKTECH”) AND THE PERSON (“BUYER”) PLACING AN ORDER (“ORDER”) FOR KWIKTECH PRODUCT (“PRODUCT”). BY PLACING AN ORDER YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD AND AGREE TO BE BOUND BY THESE CONDITIONS. NO OTHER TERMS WILL APPLY TO AN ORDER FOR THE PRODUCT OR ANY SUBSEQUENT SUPPLY OF THE PRODUCT (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY INCONSISTENT OR ADDITIONAL PROVISIONS ON THE BUYER’S ORDER OR OTHERWISE NOTIFIED BY THE BUYER TO KWIKTECH) EXCEPT WITH THE PRIOR SIGNED WRITTEN CONSENT OF KWIKTECH.
An Order submitted by the Buyer constitutes an offer by the Buyer to Kwiktech to purchase the Products on these Conditions and is subject to Kwiktech’s subsequent acceptance. Acceptance occurs when Kwiktech issues written confirmation of its acceptance of the Order (“Order Confirmation”) and accepts payment. Kwiktech reserves the right to refuse part or all of any Order placed by a Buyer.
Prices are confirmed in the Order Confirmation. Prices are quoted in Australian dollars. Prices do not include the cost of any instalment services, or fixings outside of Kwiktech kit items and products that are not manufactured by or for Kwiktech.
Kwiktech requires payment for the Products including shipping costs at the time of shipment, in which case it will advise the Buyer electronically. Except by express written agreement between Kwiktech and the buyer, no set off will be permitted. If the Buyer has an existing line of credit with Kwiktech then the Buyer may request the payment for the Products be made by way of that credit facility, and if approved by Kwiktech, such amounts will be payable on and subject to the terms of that credit facility (“Credit Terms”). The Buyer acknowledges and agrees that a breach of the Credit Terms will be a breach of these Terms, and Kwiktech may withhold supply of all Products (including Products the subject of an accepted Order) until such breaches are remedied.
Orders must be in writing or accepted electronically through the Kwiktech website. By placing an Order the Buyer agrees that the Order content (including Product type, quantity, price, postage and delivery costs and timing) is correct. The Buyer cannot withdraw, vary or cancel placed Orders except with Kwiktech’s prior written consent. The Buyer is liable for all of Kwiktech’s costs associated with withdrawal, variation or cancellation of an Order. A natural person must be at least 18 years of age to place an Order. Any person placing an order on behalf of a non-natural person warrants to Kwiktech that they have the authority of the Buyer to place the Order and bind the Buyer by these Conditions.
Deliveries are made to the address designated by the Buyer in the Order and confirmed in the Order Confirmation (and the Order Confirmation will prevail to the extent of any inconsistency). Delivery times may vary according to the availability of the Products, the raw materials thereof and delay by the carrier.
Any delivery date specified in the Order Confirmation is an estimate only. Kwiktech will not be responsible for failure to meet any delivery date or period specified in the Order, Order Confirmation or otherwise agreed between the Parties which are estimates only and will not be liable for any cost or damage due to early or late delivery.
6 RISK AND TITLE
Risk in the goods passes to the Buyer at the time the Products are delivered to the carrier, or for Orders where delivery is effected by collection from Kwiktech by the Buyer, risk in the goods passes to the Buyer once the Product is made available for collection by Buyer as notified by Kwiktech in the Order Confirmation or by subsequent written notice. The Buyer is responsible for filing any claims with carriers for damaged or lost shipments. Title passes to the Buyer when full payment for all Products the subject of an Order is received by Kwiktech in cleared funds.
Subject to clause 9 of these Conditions, to the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from these Conditions. Without limiting the foregoing, and subject to clause 9, under no circumstances whatsoever shall Kwiktech have any liability or obligation to Buyer for any and all advice assistance, recommendations or information provided by Kwiktech to Buyer with regard to the handling, storing, applying or using any Products supplied by Kwiktech to Buyer. Buyers and or end users of Kwiktech products are responsible for the Kwiktech products limitations and under no circumstances shall Kwiktech be liable for constructions made using Kwiktech products.
8 LIMITATION OF LIABILITY
The Buyer must carefully check all Products upon receipt at the shipping destination for compliance with these Conditions and the Products specifications. Claims must be notified to Kwiktech in writing within 10 (ten) working days of Buyer’s detection of the defects and in any event no later than 6 (six) weeks after delivery of the Products to the delivery address. Failure to give Kwiktech such notice shall constitute full waiver of such claims by Buyer. Upon request, a sample shall immediately be sent to 1 Lenbar Court, Highbury South Australia 5089 for verification purposes.
Subject to clause 9, Kwiktech will not be liable for personal injury or property damage unless caused by Kwiktech’s negligence and in no event shall Kwiktech be liable for any incidental or consequential damage. Subject to clause 9, Kwiktech’s liability will not exceed the price paid by the Buyer for the relevant Order.
9 AUSTRALIAN CONSUMER LAW
If a supply under these terms is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), nothing contained in these Conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability which cannot be excluded. However, to the extent that the ACL permits Kwiktech to limit its liability, then Kwiktech’s liability will be limited to:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
10 INTELLECTUAL PROPERTY
Kwiktech retains all intellectual property rights in the Products and nothing in these Conditions transfers any intellectual property rights in the Products to the Buyer.
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11 FORCE MAJEURE
Kwiktech shall not be liable in any way for any loss or damage arising directly or indirectly, through or in consequence of production, delivery or holding stock of the Products being prevented or delayed by happenings or occurrences due to or by reason of any matters or thing beyond the reasonable control of Kwiktech.
12 ASSIGNMENT, SEVERANCE, WAIVER
The Buyer cannot assign any of its rights under these Conditions without Kwiktech’s prior written consent. Each of the provisions of these Conditions are severable and distinct from others and if at any time one or more of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality and or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired by it. No failure to exercise or delay in exercising of any rights hereunder shall operate as a waiver of that or any other right, nor shall any single, defective or partial exercise preclude any other or future exercise of the right.
13 GOVERNING LAW AND JURISDICTION
These Conditions are governed by the laws in force in South Australia and both parties submit to the non-exclusive jurisdiction of the courts of the South Australia the Adelaide Registry of the Federal Court of Australia and any court hearing appeals from those courts.
14 DEFAULT BY BUYER
Subject to Clause 3 and with written agreement between Kwiktech and the buyer regarding payment. The Buyer acknowledges that in the event of (a) any default or failure of the Buyer in making due and punctual payment of any amount to Kwiktech; (b) an administrator, liquidator or provisional liquidator being appointed in respect of the Buyer; (c) a receiver and manger, administrator or controller being appointed to the assets of the Buyer; (d) the Buyer going into bankruptcy or being wound up; (e) the Buyer admitting in writing or being declared by a court to be unable to pay its debts when they fall due, or (f) there being a breach by the Buyer of any of these terms and conditions, then all monies payable by the Buyer to Kwiktech shall become immediately due and payable whether or not the due date for payment has expired and Kwiktech may do any of the following: withdraw any credit facilities extended to the Buyer, withhold any further deliveries of Products, enter the Buyer’s premises and recover and resell any Products already delivered, and cease to supply goods to the Buyer.