TERMS AND CONDITIONS
1. INTERPRETATION
(a) ‘Contract’ means the standard trading terms and conditions of sale (which applies to each and every Quotation and/or Order) and includes any Quotation and Order
(b) ‘KYPER’ means (DO NO. 2)
(c) ‘Customer’ means the entity to which ‘KYPER’ enters into a Contract for the sale of Goods.
(d) ‘Goods’ means the goods described in the Quotation or Order and includes replacement goods.
(e) ‘Order’ means a written or verbal order from the Customer to KYPER.
(f) ‘Quotation’ means a written or verbal quotation provided by KYPER to the Customer.
2. ORDERS
(a) Orders for Goods will be binding upon KYPER and the Customer. However, KYPER reserves the right to accept orders in whole or in part.
(b) Once KYPER has accepted and Order, the customer may not alter or modify the Order without the prior written consent of KYPER.
(c) 15% Re-stocking fee applies to all returned products providing they are in re-saleable condition.
3. PRICES
(a) All prices contained in the Quotation and/or Order will be exclusive of GST. All prices are in Australian dollars and subject to alteration without notice. All invoices are in Australian dollars and must be settled in Australian dollars.
(b) Orders with an invoice value of over $350.00 excluding GST will be shipped free in-store
(c) Orders with an invoice value of under $350.00 excluding GST will be charged a freight charge of $17.25. (Freight charges subject to change)
4. PAYMENT AND CREDIT TERMS
(a) Unless otherwise agreed in writing, the payment due date is strictly thirty, (30) days from the end of the month in which the Goods are purchased.
(b) Accounts with overdue balances will automatically have credit withdrawn until all outstanding balances are cleared. KYPER reserves the right to charge interest at the rate of 2% on all overdue balances calculated on a daily basis from the due date until such amount is paid.
(c) If the Customer defaults in payment of any invoice when due, the Customer will indemnify KYPER from and against all KYPER’s costs and disbursements including a solicitor and own client basis and in addition to KYPER’s nominee’s costs of collection.
5. DELIVERY OF GOODS AND RISK
(a) Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
(b) The failure of KYPER to deliver will not entitle the Customer to treat this Contract as cancelled.
(c) KYPER will not be liable for any loss or damage whatever due to failure by KYPER to deliver the Goods (or any part of them) promptly or at all.
(d) All risk for the Goods passes to the Customer on delivery even if KYPER retains ownership.
(e) Delivery will be free in store (FIS) Australia wide for Orders in excess of $150.00 + GST. However, the Customer will be liable delivery charges if a delivery date is required outside of usual delivery times. Orders less than $150.00 + GST will be subject to the current freight charge of $17.25. (Freight charges subject to change)
6. RETENTION OF TITLE
(a) All Goods remain the property of KYPER until the Customer has paid for the Goods in full. If payment is made by cheque, payment will not deemed to have been made until the cheque has been honoured.
(b) If the Goods are on-sold by the Customer before payment to KYPER, the proceeds of sale will become property of KYPER.
(c) If the Goods are not paid for pursuant to clause 4, KYPER may give notice in writing to the Customer to return the Goods or any part of them to KYPER.
(d) KYPER may enter the Customer’s premises without notice at any time and take possession of the Goods and without being responsible for any damage thereby caused if:
(i) The Customer does not pay for the Goods under clause 4;
(ii) The Customer fails to return the Goods upon demand;
(iii) A trustee in bankruptcy. Administrator, or receiver and manager is appointed over the Customer;
(iv) Winding-up proceedings in relation to the Customer are commencing; or
(v) The Customer becomes bankrupt.
7. CLAIMS
(a) The Customer will inspect the Goods on delivery and will within seven (7) days of delivery notify KYPER in writing of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the Order or Quotation.
(b) The Customer will afford KYPER the opportunity to inspect the Goods within a reasonable time of delivery if the Customer believed the Goods are defective in any way. If the Customer fails to comply with these provisions, the Goods will be deemed to be free from any defect or damage and payment will be owing under this Contract.
(c) If KYPER agrees in writing that the Customer is entitled to reject the Goods because they are defective:
(i) The Goods must have a corresponding invoice number quoted;
(ii) Freight charges uncured for the return of the Goods being returned is at the expense of the Customer, unless otherwise agreed; and
(iii) KYPER’s liability is limited to either replacing or repairing the Goods at its discretion.
(d) KYPER does not warrant that the Goods are fit for any particular purpose or an intended use by the Customer.
8. LIMITATION OF LIABILITY
(a) Subject to cause 8(b), KYPER will have no liability whatsoever for ant direct or indirect losses, expenses, damages and costs incurred by the Customer caused by any breach by KYPER of this Contract or any negligent act or omission.
(b) The liability of KYPER to the Customer in the event of any breach of this Contract or other cause of action will not exceed the prices o the Goods.
9. PRIVACY ACT 1998
(a) The Customer agrees for KYPER to obtain from a credit-reporting agency and the trade referees a credit report containing personal credit information about the Customer and any additional information required by KYPER.
(b) KYPER may exchange information about the Customer with those trade referees name in the application form for a trading account or named in a consumer credit report issued by reporting agency to:
(i) Assess the Customer’s application;
(ii) Notify other credit providers of a default by the Customer;
(iii) Exchange other information with other credit providers as to the status of the trading account, if the Customer is in default with other credit providers; and
(iv) Assess the credit worthiness of the Customer.
10. GENERAL
(a) If any provision of these terms and conditions becomes void or unenforceable, it will be severed from this agreement without affecting the enforceability of the other provision, which will continue to have full force and effect.
(b) These terms and conditions are governed by the laws of New South Wales and each party irrevocably and unconditionally submit to the nonexclusive jurisdiction of the courts of New South Wales.
(c) KYPER may terminate or vary this Contract or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. KYPER will not be liable for any loss or damage whatever arising from termination or cancellations.
11. PERSONAL PROPERTY SECURITY ACT (PPSA)
11.1 The Customer agrees, at the request of KYPER, to enter into a Security Agreement with KYPER to grant in favour of KYPER a Security Interest in all the Customer’s present and after acquired property relating to the Goods.
11.2 The Customer acknowledges and agrees that it shall, within 14 days of request from KYPER, do all things and sign all documents as required by KYPER to register, confirm or validate the Security Interest created over the Customer’s assets by any Security Agreement.
11.3 KYPER may exercise its rights under the Security Agreement any time after the Customer fails to comply with this Agreement, without KYPER first having to take any action or enforce any of its other rights against the Customer.
11.4 The Customer will be entitled to a release of the Security Agreement when all its obligations under this Agreement have been satisfied.
11.5 The Customer shall not without KYPER’s prior written consent, which will not be unreasonably withheld, do any of the following:
(a) acquire any asset which is, or upon acquisition, will be subject to a Security Interest which is not a Permitted Security Interest; or (b give any person other than KYPER control or possession of the Goods (other than under a Permitted Security Interest).
11.6 The Customer agrees that it will promptly take such action as KYPER may require (including providing information or signing documents) to ensure that any Security interest granted in favour of KYPER attaches to the secured property and to enable KYPER to perfect any such Security Interest or otherwise exercise any rights that it may have under the PPS Law in relation to the secured property.
11.7 The Customer acknowledges and agrees that, from the registration commencement time under the PPSA:
(a) it shall not cause or permit any person to take a Security Interest over, or to register a financing statement in relation to, any secured property without the prior written consent of KYPER and will immediately notify KYPER if it becomes aware of any person taking steps to register a financing statement in relation to such secured property;
(b) it has no rights under, or by reference to, sections 125, 142 and 143 of the PPSA if it defaults and KYPER takes enforcement action under this Agreement in respect of the secured property;
(c) it waives its rights to:
(i) receive any notice under sections 95, 130 and 135 of the PPSA in relation to the enforcement of any Security Interest over the secured property;
(ii) receive a statement of account under section 132(3)(d) and 132(4) of the PPSA if KYPER disposes of any of the secured property following repossession of that secured property; and
(iii) receive a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by, this Agreement.
11.8 Except if section 275(7) of the PPSA applies, each party to this Agreement agrees not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.