The following Terms and Conditions of Sale (“Terms”) apply to all sales of goods and/or services by Commuserv and the purchaser thereof (“Customer”) by so purchasing acknowledges and agrees that these Terms are binding on Commuserv and the Customer.
“ACL” means The Australian Consumer Law, comprised in Schedule 2 to the Competition and Consumer Act 2010 (Cth). Words and phrases defined in the ACL have the same meaning in these Terms.
“Goods” means any and all goods supplied by Commuserv to the Customer, or ordered by the Customer but not yet supplied, and includes goods described on any quotation, invoice, purchase order or any other document provided by Commuserv to the Customer;
“PPSA” means the Personal Property Securities Act 2009 (Cth). Words and phrases defined in the PPSA have the same meaning in these Terms.
“Price” means the cost of the Goods or the Services, as the case may be, as referred to in Commuserv’s price lists, prepared quotes and/or any specific arrangement between Commuserv and the Customer and is subject to change by Commuserv at any time and from time to time and whether or not notified by Commuserv to the Customer;
“Services” means any and all services supplied by Commuserv to the Customer, or ordered by the Customer but not yet supplied, and includes services described on any quotation, invoice, purchase order or any other document provided by Commuserv to the Customer;
1. These Terms constitute a security agreement within the meaning and for the purposes of the PPSA.
2. These Terms govern the supply of Goods and/or Services by Commuserv to the Customer to the exclusion of any other terms and conditions (including any terms and conditions otherwise used by the Customer).
3. These Terms supersede any previous agreement between Commuserv and the Customer and any such previous agreement is hereby terminated (but without prejudice to any right or remedy of a party already accrued under any such agreement).
4. If the Customer consists of more than one person or entity, then these Terms bind them jointly and severally.
5. Commuserv may amend or replace these Terms at any time and from time to time at the sole discretion of Commuserv and whether or not notified by Commuserv to the Customer.
6. If any provision of these Terms is (or is found to be) invalid or unenforceable, then it may be severed from these Terms without affecting the validity and enforceability of any of the remaining provisions.
7. These Terms are governed by the law of South Australia and the parties submit to the non-exclusive jurisdiction of the courts in South Australia.
8. Commuserv may, in its absolute discretion, apply any monies received from the Customer toward amounts due and payable to Commuserv by the Customer in such manner and order as Commuserv sees fit.
9. If Commuserv requests it, the Customer must pay Commuserv any portion of the Price, or the whole Price, as a deposit prior to any supply of Goods and/or Services.
10. The Customer must pay the Price (or the balance of the Price, as the case may be) for any supply of Goods and/or Services, in full and with no deduction or set-off and notwithstanding any dispute as to the Price due and payable, within 14 days of receipt of an invoice for the same, or within such other period as Commuserv and the Customer may agree in writing.
11. Services are not included in and must be paid for in addition to the Price payable for Goods (whether the Services are supplied in relation to the Goods or otherwise).
12. Commuserv may charge, and the Customer must pay upon being charged by Commuserv, interest on any amount due and payable, but not paid, to Commuserv by the Customer, at a rate of 25% per annum calculated daily on the total amount (including interest) then outstanding from (and including) the day after the due date for payment until (and including) the day on which the total amount outstanding is paid in full.
13. The Customer will upon demand by Commuserv reimburse to Commuserv any and all costs and expenses incurred or payable by Commuserv by reason of any default or breach of these Terms by the Customer, including costs and expenses incurred or payable in connection with Commuserv obtaining or attempting to obtain payment of amounts due and payable by the Customer.
14. Any payment made by or on behalf of the Customer which is later avoided by the application of any statutory provision will be deemed not to discharge the Customer’s indebtedness to Commuserv and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
15. The Customer will upon demand pay Commuserv an administration fee (in such amount as may be set from time to time by Commuserv), and reimburse Commuserv for any and all costs and expenses incurred or payable, as a result of any cheque or electronic banking transaction made by or received from the Customer being cancelled or dishonored for whatever reason.
16. Commuserv may, in its absolute discretion, vary or cancel any credit facility provided to the Customer by Commuserv.
17. The Customer is liable for the cost of delivery of Goods.
18. Commuserv will not be liable for any cost, expense, loss or damage arising from or in connection with any delay in or failure of delivery of Goods beyond Commuserv’s reasonable control and in any event to the extent permitted by law will not be liable for any consequential loss or damage.
19. Where delivery (or any part of it) is carried out by a third party, Commuserv will not be liable for any cost, expense, loss or damage whatsoever or howsoever arising from or in connection with such delivery.
20. The Customer will inspect Goods upon delivery and if there is any defect or discrepancy in the Goods (or any of them) the Customer must notify Commuserv of the same within 24 hours of delivery, and if no such notice is given within that time period then the Goods will be deemed to comply with the order and to be free of any defect or discrepancy whatsoever.
21. In connection with any notice given under the preceding paragraph, Commuserv may inspect the Goods (or any of them) and for that purpose the Customer will allow Commuserv and its employees and/or agents access to the Goods and the Customer’s premises (or any other premises where the Goods are located).
22. Notwithstanding any retention of title provision in these Terms, risk in Goods will pass to the Customer upon delivery to the Customer or its agent or a carrier nominated by the Customer.
23. If the Goods (or any of them) are damaged or destroyed prior to title passing to the Customer, then Commuserv is entitled (without affecting any of its rights or remedies under any other agreement) to any insurance proceeds payable in respect of the damaged or destroyed Goods.
24. Commuserv may cancel the delivery of Goods and/or Services at any time before delivery by giving notice to the Customer by any means and Commuserv will not be liable for any cost, expense, loss or damage arising from or in connection with such cancellation.
25. The Customer may cancel the delivery of Goods and/or Services within 1 day before delivery by giving notice to Commuserv by any means and the Customer will be liable for any and all costs, expenses, loss (including the Price of the Goods and/or Services) and damage incurred or suffered by Commuserv arising from or in connection with such cancellation.
26. Title in Goods remains vested in Commuserv and does not pass to the Customer until the Customer pays in full all monies due and payable to Commuserv by the Customer (including any collection, repossession and legal and other costs and expenses incurred by Commuserv in relation to the Customer).
27. The Customer must store the Goods, whether as separate chattels or as components, so as to be clearly identifiable as the property of Commuserv until title has passed to the Customer.
28. Commuserv may demand at any time until title has passed to the Customer that the Customer returns the Goods or any part of the Goods to Commuserv.
29. If the Customer defaults in the payment of any monies due and payable to Commuserv, then Commuserv and its employees and/or agents may (in addition and without prejudice to any of the rights afforded to Commuserv by the PPSA) enter without notice upon the Customer’s premises or any other premises where the Goods are known or believed to be stored (and for this purpose the Customer must allow reasonable access), seize and take possession of the Goods and remove the Goods to any other place or places, and Commuserv may then sell and dispose of the Goods in any manner and for any price or prices Commuserv sees fit, and Commuserv may apply and/or retain the proceeds of such sale as it sees fit.
30. The Customer consents to Commuserv registering any and all security interest arising under these Terms on the PPSR, including the registration of a purchase money security interest (as defined in the PPSA) and in proceeds (as defined in the PPSA).
31. The Customer waives any right to receive notice of a verification statement in relation to any registration by Commuserv on the PPSR.
32. The Customer will promptly execute any document, provide all information, fully co-operate with Commuserv and do any other act or thing that Commuserv may require to ensure that Commuserv has a perfected security interest in, and has priority over any other security interest in, the Goods.
33. Unless and until all monies due and payable by the Customer to Commuserv are fully paid, the Customer will not grant or otherwise allow to arise any security interest in the Goods other than in favour of Commuserv.
34. The Customer may not register a financing change statement in respect of Commuserv’s security interest without Commuserv’s prior written consent.
35. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising under these Terms, then the following provisions of the PPSA will not apply: section 95 (notice of removal of accession), to the extent that it requires Commuserv to give a notice to the Customer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires Commuserv to give a notice to the Customer; subsection 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if not disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
36. The Customer must give Commuserv any notice or document it is required or permitted by the PPSA to give to Commuserv.
37. Commuserv will not disclose information of the kind referred to in subsection 275(1) of the PPSA except in circumstances required by subsections 275(7)(b)-(e).
38. The Customer will upon demand by Commuserv reimburse Commuserv for any and all costs and expenses incurred or payable by Commuserv in relation to the registration (including any maintenance, amendment or renewal thereof), de-registration and release of any security interest arising under these Terms.
39. If Commuserv receives any notice in relation to the Customer under section 64 of the PPSA, all outstanding amounts may, in Commuserv’s sole discretion, become immediately due and payable.
40. Subject to the provisions of the ACL, Commuserv provides in respect of any supply the consumer guarantees given by a supplier under the ACL.
41. Commuserv gives no other guarantee or warranty. Commuserv gives no manufacturer’s warranty or guarantee and no express warranty.
42. Commuserv does not represent that Goods are reasonably fit for any particular purpose.
43. The parties rely on and will require the manufacturer/s of Goods to comply with the guarantees given by manufacturers under the ACL and with any express warranty given or made by the manufacturer/s in relation to the Goods.
44. The remedies available to the Customer for any breach of a consumer guarantee given by Commuserv are limited to those provided by the ACL and are available and exercisable subject to the provisions of the ACL.
45. Where Goods are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, Commuserv’s liability for failure to comply with a consumer guarantee given by Commuserv is limited to the replacement of the Goods or the supply of equivalent goods or the repair of the Goods.
46. Where Services are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, Commuserv’s liability for failure to comply with a consumer guarantee given by Commuserv is limited to the supplying of the Services again.
47. In relation to any claim by the Customer for failure to comply with a guarantee or warranty, the Customer is liable for and indemnifies Commuserv against any and all costs and expenses in relation to packaging, delivery, postage and handling as between the Customer and Commuserv, the Customer and the manufacturer, and Commuserv and the manufacturer.
48. The Customer must pay for any and all Services supplied in relation to Goods notwithstanding any or any alleged failure of the Goods to comply with a guarantee or warranty.
49. Where any Goods are replaced or repaired because of a failure of the Goods to comply with a guarantee or warranty, the Customer must pay for any and all Services supplied in relation to the replacement or repaired Goods (excluding the repair itself), including where the Services would not have been required had the Goods complied.
50. The Customer is responsible (and Commuserv has no responsibility) for making and retaining back-ups and/or copies of data and software, including prior to providing any Goods to Commuserv in relation to the supply of Services or any claim for failure of the Goods to comply with a guarantee or warranty. Commuserv will not be liable for or in connection with any lost or damaged data or software.
51. The Customer acknowledges and agrees that in relation to any supply of Goods and/or Services by Commuserv the Customer has relied on its own enquiries, skill, knowledge and judgment and has not relied on any representation by Commuserv.