The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of goods by dormakaba Australia Pty Ltd (herein after referred to as “dormakaba”) and that these terms and conditions ("T+Cs") take precedence over any terms and conditions contained in any document provided by the Customer. Any request from the Customer to dormakaba for the supply of goods constitutes acceptance of these T+Cs.
The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
The Customer warrants that all information to dormakaba is true, accurate and correct in every detail and that if credit is given by dormakaba this will be done in reliance upon the information supplied
by the Customer.
dormakaba is not a certified engineer. Goods supplied from stock, made to order or imported to order must be approved by the Customer's own engineers for certification. These T+Cs, including any credit limits set by dormakaba, are effective from the date of issue by dormakaba and may be amended or superseded from time to time by written notice given by dormakaba. This is a legal document and advice should be sought if the Customer is unclear on any point.
"ACL" means the Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth).
"Goods" means all goods and/or services supplied by dormakaba 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.
"Consumer" is as defined in the ACL.
"PPSA" means the Personal Property Securities Act 2009 (Cth).
"Price" means the cost of the goods as referred to in dormakaba's price lists, prepared quotes and/or specific arrangements and is subject to change from time to time without notice.
1.1 This contract is construed in accordance with laws of the State of Victoria.
2. Payment Terms
2.1 At dormakaba's sole discretion, a deposit may be required prior to any supply.
2.2 Credit account Customers are required to pay all amounts for purchases, in full and without deduction or set-off, no more than 30 days from the end of the month during which any given purchase is made.
2.3 In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the above payment terms.
2.4 Prices expressed in the price list are recommended trade list prices in Australian dollars and are subject to change without notice. Air freight charges on some lines may apply, and are additional to the relevant quoted price. Taxes, duties and imports are additional to the Customer's account.
2.5 The quoted price is based on the particular specifications of the goods, current at the time of quotation. dormakaba has the right to review the quoted price if there is any variation in specification.
2.6 dormakaba reserves the right to change, suspend or withdraw credit facilities and payment terms at any time.
3. Deliveries & Returns
3.1 Any date provided for the delivery of goods is an estimate only.
3.2 dormakaba's obligation to deliver is discharged on arrival of the goods at the Customer's nominated delivery destination or nominated agent or carrier. If the Customer is unable or unwilling to accept physical delivery of the goods when ready for delivery,
dormakaba will be entitled to charge a fee for any delay suffered, or to arrange for storage of the goods at the Customer's risk and cost, including all transportation, storage and other consequential costs.
3.3 Deliveries for most standard goods are ex stock, however, imported goods or non standard finishes or modifications are subject to supplier availability and special delivery charges. A freight surcharge fee will apply to small lot orders.
3.4 Deliveries required to be dispatched other than by dormakaba's normal carrier may incur additional freight charges which will be at the Customer's cost.
3.5 The Customer must inspect the goods within 7 days from delivery and notify dormakaba of any defects, short deliveries or any failure to fulfil any quotation or order, and grant dormakaba access to the goods in order to inspect any alleged defects.
3.6 Subject to the ACL all goods for return must first be authorised by dormakaba, and will be subject to a minimum restocking fee of 20% of the purchase price.
3.7 The Customer warrants that the goods to be returned to dormakaba are in the same condition as when first delivered to the Customer with the relevant invoice number and date of order noted.
3.8 Purpose made, fabricated, specially finished, modified or imported goods are not returnable.
3.9 Any obligation of dormakaba to supply goods is subject to its ability to secure labour, materials and other services for the manufacture and supply of the goods.
4. Personal Property Securities Act 2009 (PPSA)
4.1 The Customer grants ,and dormakaba may register on the Personal Property Securities Register (PPSR), a security interest in all goods provided under this contract, including but not limited to intellectual property and all other present or after-acquired property.
4.2 The Customer warrants that all purchases under this contract are for commercial purposes only and, accordingly, the provisions of the Consumer Credit Act will not
4.3 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
4.4 dormakaba and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to this contract.
4.5 To the extent permitted by the PPSA, the Customer agrees that the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on dormakaba will apply only to the extent that they are mandatory or dormakaba agrees to their application in writing, and where dormakaba has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
4.6 dormakaba may allocate amounts received from the Customer in any manner dormakaba determines, including in any manner required to preserve any Purchase Money Security Interest it has.
4.7 This contract is a security contract and dormakaba has a Purchase Money Security Interest in all present and future goods supplied by dormakaba to the Customer and the proceeds of the goods and the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time
4.8 The Customer agrees to execute any documents, provide all relevant information and co-operate fully with dormakaba to ensure that dormakaba has a perfected security interest in the personal property charged.
4.9 The Customer agrees to notify dormakaba of any change in the Customers' structure, including sale or disposition of any part of the Customer's business, any change in directorships, shareholders or change in partnership or trusteeship 7 days prior to any such change taking effect.
4.10 The Customer agrees that, until all monies owing to dormakaba are paid in full, it shall not sell or grant any other security interest in the goods.
5. Retention of Title
5.1 Until dormakaba receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to dormakaba by the Customer:
(a) title and property in all goods remain vested in dormakaba and does not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for dormakaba;
(c) the Customer must keep the goods separate from its goods and maintain dormakaba’s labelling and packaging;
(d) the Customer must hold the proceeds of any sale of the goods on trust for
dormakaba in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(e) in addition to its rights under the PPSA, dormakaba may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of dormakaba, and for this purpose the Customer irrevocably licences dormakaba to enter such premises and also indemnifies dormakaba from and against all costs, claims, demands or actions by any party arising from such action.
5.2 dormakaba may demand at any time until title has passed to the Customer that the Customer returns the goods or any part of them.
6.1 Risk in the goods passes to the Customer on delivery to the Customer or its nominated agent or carrier.
6.2 If any of the goods are damaged or destroyed prior to title passing to the Customer, dormakaba is entitled, without affecting any other rights and remedies under any contract, to any insurance proceeds payable for the goods.
7.1 Except as specifically stated in this contract, or as contained in any express warranty provided in relation to the goods, this contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
7.2 If the Customer is a consumer nothing in this contract restricts, limits or modifies the Customer's rights or remedies against dormakaba for failure of a statutory guarantee under the ACL.
7.3 If the Customer on-supplies the goods to a consumer and:
(a) the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of dormakaba's liability to the Customer;
(b) the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of dormakaba's liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by the Customer or any third party.
7.4 If clause 7.2 or 7.3 do not apply, then other than as stated in this contract or any written warranty statement dormakaba is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by the Customer or any third party.
7.5 dormakaba is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
7.6 The Customer acknowledges that:
(a) it has not made known, either expressly or by implication, to dormakaba any purpose for which it requires the goods and it has the sole responsibility of satisfying itself that the goods are suitable for the Customer's use.
(b) any description of the goods provided in a quotation or invoice is given by way of identification only and does not constitute a contract of sale by description.
7.7 Nothing in this contract is to be interpreted as excluding, restricting or modifying the application of any mandatory State or Federal legislation.
8. Payment Default
8.1 If the Customer defaults in payment by the due date of any amount payable to dormakaba, then all money which would become payable by the Customer to dormakaba at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and dormakaba may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the rate of 1.5% per month calculated daily;
(b) charge the Customer for all costs and expenses incurred by it resulting from the default;
(c) cease or suspend the supply of any further goods to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.;
(e) clause 8.1 may also be relied upon, at dormakaba's option where the Customer becomes bankrupt or insolvent or has a liquidator or similar functionary appointed in respect of its assets.