- In these conditions:
- The Customer must pay to Convoluted Technologies all monies owing for the Goods and Services and associated charges, as set out in any invoice, order, agreement or tender document issued by or on behalf of Convoluted Technologies, unless otherwise agreed in writing.
- An invoice will be issued to the Customer each time goods and/or services are supplied by Convoluted Technologies. Where the supply of goods and services have not been completed by each month end, or at such other stage of a particular supply when Convoluted Technologies reasonably determines it is appropriate to do so, a progress invoice may be issued to the Customer.
- The Goods and Services are supplied subject to these Terms and Conditions, which shall prevail over all other conditions of the Customer’s order to the extent of any inconsistency, and which shall not be varied or waived unless agreed by Convoluted Technologies in writing. These Terms and Conditions apply whether or not the Customer has an account with Convoluted Technologies.
- The Customer is not entitled to a refund if the Customer simply changes its mind and wishes to return any unused Goods or to cancel an order. Any request for a refund in those circumstances within 30 days of sale or order will be considered by Convoluted Technologies, but may be refused by Convoluted Technologies in its reasonable discretion. Where a refund in those circumstances is agreed by Convoluted Technologies in its discretion, a restocking fee of 15% of the value of those Goods will be charged to the Customer and deducted from any refund.
- Convoluted Technologies will replace any Goods if:
- Convoluted Technologies is satisfied that the Goods were defective in materials or in manufacture at the time of delivery of the Goods to the Customer; and
- The Customer gives notice to Convoluted Technologies at the address shown on the front of the invoice or other delivery documentation or at the address otherwise notified to the Customer, within 7 days of receipt of the Goods, of the alleged defects in materials or in manufacture; and
- The Customer actually returns the Goods to Convoluted Technologies at the expense of the Customer within 30 days of delivery, quoting invoice numbers.
Limitation of Liability
- Subject to clauses 6 and 8 of these Terms and Conditions, and to the extent permitted by the Australian Consumer Law, the Customer has no claim against Convoluted Technologies for any damages whatsoever arising out of the purchase or the use of the Goods.
- Assuming that the Goods or Services sold by Convoluted Technologies are not for personal, domestic or household purposes, Convoluted Technologies’ liability under any guarantee or warranty, whether express or implied by the Australian Consumer Law or other relevant legislation is limited to:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods;
- the payment of the cost of having the goods repaired; or
- the supplying of the services again; or
- the payment of the cost of having the services supplied again; or
- the cost of replacing the goods;
- the cost of obtaining equivalent goods; or
- the cost of having the goods repaired, whichever is the lowest amount.
- Subject to conditions 6, 7 and 8, and subject to any statutory rights including under the Australian Consumer Law, Convoluted Technologies gives no warranties with respect to the Goods or Services supplied to the Customer. All warranties are excluded except where they are expressly given in writing by Convoluted Technologies, or except to the extent that any implied warranty cannot be excluded by law.
- The Customer must only use the Goods for the purpose for which they were intended, and must comply with all legal requirements of use and all directions of use by Convoluted Technologies or by the manufacturer of the Goods, whether provided to the Customer or posted on the Goods.
- The Customer must only employ competent trained staff to use the Goods and must ensure that all persons using the Goods are suitably instructed in the safe and proper use of the Goods.
- The Customer must comply with all Occupational Health and Safety laws relating to the use of the Goods.
- The Customer indemnifies Convoluted Technologies against any claim whatsoever arising from the Customer’s improper use of the Goods, and any breach by the Customer of its obligations under this Agreement.
No Liability for Delay
- Subject to any statutory rights including under the Australian Consumer Law, Convoluted Technologies will not be liable for any delivery delay or any non-delivery attributable to transport delays, unavailability of Goods or other products, lockouts, holiday periods, or any other cause whatsoever which is outside the control of Convoluted Technologies. Where part delivery of goods is made, payment will be made for those goods which are delivered.
- Without limiting these terms and conditions, where Convoluted Technologies is providing goods and services at the request of a Customer specifically in respect of the cleanup of an oil spill, the Customer takes full responsibility in respect of the oil spill and indemnifies Convoluted Technologies in respect of any claim or prosecution by any party whatsoever in respect of the oil spill. The Customer acknowledges that in performing its tasks in relation to the cleanup of an oil spill, it may be unavoidable that Convoluted Technologies, whilst taking all due care, spills some further oil in the course of repairs and cleaning the oil spill, and the Customer indemnifies Convoluted Technologies in respect of any such spill and in respect of any contamination or consequential loss arising from that spill.
- Convoluted Technologies reserves the following rights in relation to the Goods until all accounts owed by the Customer to Convoluted Technologies are fully paid:
- ownership of the Goods;
- to enter the Customer’s premises (or the premises of any associated company or agent or third party where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
- to keep or resell any Goods repossessed pursuant to (b) above.
If, before all accounts owing by the Customer to Convoluted Technologies are fully paid, the Goods are resold or products manufactured using the Goods are sold by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods in a separate identifiable account as the beneficial property of Convoluted Technologies and shall pay such amount to Convoluted Technologies upon request. Notwithstanding the provisions above Convoluted Technologies shall be entitled to maintain an action against the Customer for the full purchase price of the Goods.
Personal Property Securities Act (Cth) (“PPSA”)
- The retention of title to the Goods by Convoluted Technologies until they are paid for, or the sale of any goods by Convoluted Technologies to the Customer on consignment, may create a Security Interest in the Goods. All terms in this clause have the meaning given in the PPSA; and “PPSA” includes all amendments to, regulations under, and legislation associated with, the Personal Property Securities Act.
- At the request of Convoluted Technologies, the Customer shall promptly execute any documents, provide all necessary information and do anything else required by Convoluted Technologies to ensure that any Security Interest which may be created under these Terms and Conditions in the Goods or their proceeds is enforceable, perfected and otherwise effective under the PPSA, and has priority over all other security interests in the Goods. Convoluted Technologies is authorised by the Customer to register its Security Interest in respect of the Goods in the PPS Register at any time.
- The Customer waives its rights under all sections of the PPSA which are referred to in Section 115 of the PPSA, to the extent permissible by law.
- The Customer waives its right to receive a notice of PPSR registration under Section 157 of the PPSA.
- Convoluted Technologies may in protecting its security interests rely on any rights which it has under statute or under this Agreement, in its discretion.
Risk on Delivery
- The risk in the Goods passes to the Customer on delivery. The Customer must keep the Goods insured and in good condition and indemnifies Convoluted Technologies against any damage to or loss of the goods, however caused, after delivery.
- In addition to non-payment by the Customer or other breach of these Terms and conditions, the Customer will also be in breach of these Terms and Conditions if the Customer becomes insolvent or passes a resolution concerning its bankruptcy, administration, receivership or liquidation, or enters into any form of external administration.
- The Customer agrees that if the account is not paid by the due date, the account may be lodged with a mercantile agent for recovery, and in such circumstances the applicant will bear an account surcharge of minimum 5% to cover the agent’s commission. In addition the applicant agrees to bear all legal costs and disbursements incurred in the recovery of the debt.
- Convoluted Technologies may charge interest on any overdue amount at a rate equivalent to 3.0% p.a. above the business overdraft interest rate of its principal banker, as determined and calculated by Convoluted Technologies. Such interest will be payable on demand by Convoluted Technologies and for so long as it remains unpaid will compound on a monthly basis.
- The supply of the Goods and Services by Convoluted Technologies to the Customer is governed by the laws and courts of the state where the supply takes place.
- These Terms and Conditions are not affected by any time or indulgence granted to the Customer by Convoluted Technologies.
- Convoluted Technologies will comply with the Australian Privacy Principles. A copy of the Convoluted Technologies Privacy Statement and Policy is available on request.