Terms and Conditions of Trade

Terms and Conditions of Trade

  1. Definitions
    In these Terms:
    ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
    Agreement means any agreement for the provision of goods by Elite Appliances to the Customer;
    Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
    Customer means the person, jointly and severally if more than one, acquiring goods from Elite Appliances;
    Goods means goods supplied by Elite Appliances to the Customer;
    GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
    PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended; Elite Appliances means Elite Appliances (Hobart) Pty Ltd (ABN 29 679 911 850); and Terms means these Terms and Conditions of Trade.
  1. Basis of Agreement
    • 2.1 Unless otherwise agreed by Elite Appliances in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
    • 2.2 Any quotation provided by Elite Appliances to the Customer for the proposed supply of goods is:
      • (a) valid for 30 days;
      • (b) an invitation to treat only; and
      • (c) only valid if in writing.
    • 2.3 The Terms may include additional terms in any quotation from Elite Appliances.
    • 2.4 An Agreement is accepted by Elite Appliances when Elite Appliances accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods.
    • 2.5 Elite Appliances has absolute discretion to refuse to accept any offer.
    • 2.6 Elite Appliances may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
  2. Pricing
    • 3.1 Prices quoted for the supply of goods include GST and any other taxes or duties imposed on or in relation to the goods.
    • 3.2 Where there is any change in the costs incurred by Elite Appliances in relation to goods, Elite Appliances may vary its price to take account of any such change, by notifying the Customer.
  3. Payment
    • 4.1Unless otherwise agreed in writing:
      • (a)Subject to 4.1(b), full payment for the goods must be made within such period as specified by Elite Appliances to the Customer from time to time, or, if no such period is specified, by 30 days following the invoice.
      • (b)Elite Appliances reserves the right to require payment in full on receiving an order of the goods or on the delivery of the goods.
    • 4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
    • 4.3 Payment terms may be revoked or amended at Elite Appliances sole discretion immediately upon giving the Customer written notice.
    • 4.4 If the Customer reaches or exceeds any credit limit specified by Elite Appliances, Elite Appliances may withhold the supply of goods without notice or require payment in advance.
    • 4.5 The time for payment is of the essence.
  4. Payment Default
    • 5.1 If the Customer defaults in payment by the due date of any amount payable to Elite Appliances, then all money which would become payable by the Customer to Elite Appliances at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Elite Appliances may, without prejudice to any of its other accrued or contingent rights:
      • (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act (Tas) plus 2 per cent for the period from the due date until the date of payment in full;
      • (b) charge the Customer for, and the Customer must indemnify Elite Appliances from, all costs and expenses (including without limitation all debt collection costs, legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;
      • (c) cease or suspend supply of any further goods to the Customer;
      • (d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
  1. 5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at Elite Appliances option:
    • (a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
    • (b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of itscreditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
  1. Passing of Property
    • 6.1 Until Elite Appliances receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to Elite Appliances by the Customer:
      • (a) title and property in all goods remain vested in Elite Appliances and do not pass to the Customer;
      • (b) the Customer must hold the goods as fiduciary bailee and agent for Elite Appliances;
      • (c) the Customer must keep the goods separate from its goods and maintain Elite Appliances labelling and packaging;
      • (d) the Customer must hold the proceeds of sale of the goods on trust for Elite Appliances 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 as trustee;
      • (e) in addition to its rights under the PPSA, Elite Appliances 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 Elite Appliances, and for this purpose the Customer irrevocably licences Elite Appliances to enter such premises and also indemnifies Elite Appliances from and against all costs, claims, demands or actions by any party arising from such action.
  1. Personal Property Securities Act
    • 7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
    • 7.2 For the purposes of the PPSA:
      • (a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
      • (b) these Terms are a security agreement and Elite Appliances has a Purchase Money Security Interest in all present and future goods supplied by Elite Appliances to the Customer and the proceeds of the goods;
      • (c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
      • (d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Elite Appliances on the Personal Property Securities Register.
    • 7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from Elite Appliances premises and not at any later time.
    • 7.4 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.
    • 7.5 Elite Appliances 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 these Terms.
    • 7.6 To the extent permitted by the PPSA, the Customer agrees that:
      • (a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Elite Appliances will apply only to the extent that they are mandatory or Elite Appliances agrees to their application in writing; and
      • (b) where Elite Appliances has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
    • 7.7 The Customer must immediately upon Elite Appliances request:
      • (a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
      • (b) procure from any person considered by Elite Appliances to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Elite Appliances may at any time require.
    • 7.8 Elite Appliances may allocate amounts received from the Customer in any manner Elite Appliances determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Elite Appliances.
    • 7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
  2. Risk and Insurance
    • 8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from Elite Appliances premises.
    • 8.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
    • 8.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by Elite Appliances, unless recoverable from Elite Appliances on the failure of any statutory guarantee under the ACL.
  3. Performance of Agreement
    • 9.1 Any period or date for delivery of goods stated by Elite Appliances is an estimate only and not a contractual commitment.
    • 9.2 Elite Appliances will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
  4. Description of the Goods
    • 10.1 Elite Appliances will provide and the Customer must use the most up to date photographs, information and written description of the goods on their websites and in-store. It is the Customer’s responsibility to ensure that they are using current information and must update any information or photos within 3 days of provision.
    • 10.2 The Customer must ensure the photographs are presented in a format that is of the highest possible quality.
    • 10.3 The Customer may not use any other photographs, descriptions, information or any other material in relation to Elite Appliances goods to describe the products, other than the photographs, descriptions, information or any other material provided by Elite Appliances.
    • 10.4 All intellectual property subsisting in information or photographs provided by Elite Appliances remains the exclusive property of Elite Appliances and must not be copied or used other than allowed by these Terms.Special Offers and Campaigns
  5. Special Offers and Campaigns
    • 11.1 Elite Appliances may present to the Customer an option to participate in a special offer or promotion campaign. The
      Customer is not obligated to participate in the offer or campaign. If the Customer elects to participate in the offer or
      promotion, the Customer must comply with all rules, terms and conditions contained in the special offer or promotion
      guidelines.
  1. Delivery
    • 12.1 Subject to clause 12.5, Elite Appliances will arrange for the delivery of the goods to the Customer.
    • 12.2 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
    • 12.3 Elite Appliances may make part delivery of goods and Elite Appliances may invoice the Customer for the goods
    • 12.4 The Customer indemnifies Elite Appliances against any loss or damage suffered by Elite Appliances, its sub-contractors or employees as a result of delivery or attempted delivery, except where the Customer is a consumer and Elite Appliances has not used due care and skill.
    • 12.5 If agreed that the Customer will collect the goods the Customer must collect the goods with 7 days of being advised they are ready.
    • 12.6 Delivery is deemed to have occurred where:
      • (a) if Elite Appliances nominated carrier is used, when Elite Appliances nominated carrier delivers the products to the delivery address; or
      • (b) in all other circumstances, where the product leaves Elite Appliances premises.
  1. Liability
    • 13.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods, the Agreement 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.
    • 13.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Elite Appliances for failure of a statutory guarantee under the ACL.
    • 13.3 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 Elite Appliances 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 Elite Appliances 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.

    • 13.4 If clause 13.2 or 13.3 do not apply, then other than as stated in the Terms or any written warranty statement Elite Appliances 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.
    • 13.5 Elite Appliances 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.
    • 13.6 The Customer acknowledges that:
      • (a) it has not relied on any advice, recommendation, information or assistance provided by Elite Appliances in relation to the goods or their use or application.
      • (b) it has not made known, either expressly or by implication, to Elite Appliances any purpose for which it requires the goods and it has the sole responsibility of satisfying itself that the goods are suitable for the use of the Customer.
    • 13.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods which cannot be excluded, restricted or modified.
  1. Cancellation
    • 14.1 If Elite Appliances is unable to deliver or provide the goods, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
    • 14.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Elite Appliances once the order has been accepted.
  2. Shortages and Exchanges
    • 15.1 Subject to clause 15.2 and 15.3, Elite Appliances will not be liable for any shortages, damage or non- compliance with the specifications in the Agreement unless the Customer notifies Elite Appliances with full details and description within 2 business days of delivery otherwise the Customer is deemed to have accepted the goods.
    • 15.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by Elite Appliances, Elite Appliances may, at its option, replace the goods, or refund the price of the goods.
    • 15.3 If the Customer is a consumer, nothing in this clause 15 limit any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
  3. Force Majeure
    • 16.1 Elite Appliances is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Elite Appliances may suspend or terminate the Agreement by written notice to the Customer.
  4. Miscellaneous
    • 17.1 The law of Tasmania from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Tasmania, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
    • 17.2 Elite Appliances failure to enforce any of these Terms shall not be construed as a waiver of any of Elite Appliances rights.
    • 17.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
    • 17.4 A notice must be in writing and handed personally or sent by email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email are deemed received on confirmation of successful transmission.
    • 17.5 The Customer must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with this Agreement
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