Terms & Conditions
These are the terms and conditions on which AVA DISTRIBUTION Pty Ltd (“we” or “us” or “our”) is willing to trade with you. Any variation to these terms and conditions must be in writing and signed by an authorised officer of AVA DISTRIBUTION Pty Ltd. You agree that these terms and conditions create a PMSI in the product (and its proceeds) supplied presently and in the future by us to you.
1. Scope, Product & Price
(a) These terms and conditions include the provisions relating to your use of our product (as defined below). These terms and conditions are in addition to any terms and conditions that apply to a particular Third Party Product which may be available on the applicable Third Party Supplier’s site.
(b) You may offer to purchase from us certain products, being: (i) our products (“our product”); and (ii) products or services that are developed or licensed to end users by Third Party Suppliers.
(c) The price and description of our product you may offer to purchase from us is described in our price list. We may change the price list at any time without prior notice. Any description of our product including any specifications, illustrations, drawings, data, dimensions and weights is approximate and is given by way of identification only. The use of that description does not constitute a sale by description and does not form part of our contract with you unless we say so in writing. You are responsible for ensuring that the product ordered is suitable for its intended use by you and we are not liable to you for any product you order which is unsuitable for your intended use. All pricing of product will be in accordance with our price list and we reserve the right to invoice you in accordance with that price list despite any such unintended errors on our website or data entry errors.
(d) If we provide you with a quotation, it is valid only for the period of time specified in the quotation or 30 days, whichever is the lesser, and only in respect of the matters set out in the quotation. Our quotations are confidential. You must not disclose the information in our quotations to any other person without our prior consent.
If you have a pre-approved account limit with us, our terms are strictly in accordance with our payment terms as separately agreed with you in writing from time to time, or where there is no separate agreement, 10 days from the date of invoice. If you do not have a pre-approved account limit, payment in advance by cash, cheque, EFT or credit card is required and must be paid within 48 hours of placing an order (failing which, we will be entitled to cancel the order without notice to you). Payments by cheque will not be considered received by us until the cheque is cleared by our bank. If any payment by you is dishonoured, you must pay us an additional account processing fee of $40.00. These terms of payment also apply to any work we perform or service we provide to you on request which is separate from your purchase of product(s). An account processing fee will be charged, unless otherwise agreed, for payments made by credit card, up to 1.5% for payments made by Visa or MasterCard and 2.5% for payments made by American Express.
3. Account Limit
Normally, we allow you to purchase and continue to purchase our product as long as the total of your account does not exceed your pre-approved account limit (if any) and you have provided us with three (3) satisfactory written trade references and/or a satisfactory trade or status report from a credit rating agency acceptable to us. We may require fresh references/reports from time to time and additional information if you apply to increase your account limit. If we perform work or provide a service to you separate from your purchase of product, our fee for providing such work or service is added to your account.
You agree that you will, if we request, also provide us further supporting documentation which may include (but is not limited to) any or all of the following:
- evidence that you have been incorporated for at least 12 months; and
- a copy of your Financial Statements (which must not be more than 12 months old).
In no circumstances are we obliged to accept any application for an increase in the limit of your account and we are not obliged to give you reasons for our decision. If any account is not settled within our trading terms, you agree that, in addition to any other right we may have, we may suspend all sales and delivery of our product to you or close your account with us. You acknowledge that we may decline your application to purchase our products if we are advised by our insurers that they will not grant us appropriate cover in relation to you.
4. Government Charges
Our prices are shown exclusive of GST. GST is payable in addition to the price of our product or service and must be paid by you at the same time as you pay for our product or service. You will receive a tax invoice for products purchased from AVA Distribution.
Delivery takes place on the earlier of the time our product passes into your or your agent’s exclusive physical control, when you collect the product or arrange for their collection from us or when ownership of our product has passed to you. We will be entitled to cancel orders without notice if delivery of order cannot be taken within 48 hours of placing the order, unless otherwise agreed by us. Our prices are shown exclusive of delivery costs. Delivery costs are payable in addition to the price of our product and must be paid by you at the same time as you pay for our product. Unless we make other arrangements with you, our product is delivered direct to your business address described in your account. If you request that we deliver our product to another address, we may charge you an additional fee. Any date for delivery of our product indicated by us is an estimated date for delivery only. We are under no liability for any loss or damage, however it arises, and you may not treat the relevant purchase order or these terms and conditions as terminated, if the product is not delivered by that date. We reserve the right to deliver any products you order from us by instalment and each instalment is sold to you under a separate contract between you and us. Failure by us to deliver any instalment will not entitle you to cancel the balance of your order. In the event you are in default of these terms and conditions in respect of any instalment, we may elect to treat your default as a breach in respect of each other instalment. We may charge you storage, handling and re-delivery fees if you are unable to take delivery of our product at the time we deliver our product to you.
At all times from the date of delivery, our product is at your risk of loss or damage and you are responsible for its safe custody. You must keep our product insured and promptly provide us with evidence of such insurance and its currency as and when requested by us from time to time.
You do not own any of our product(s) in your possession until all of our product(s) you have purchased from us at any time and all other amounts owing by you to us on any account have been paid for in full. Until you have given us full payment, you promise to store and deal with our product(s) in a way that it is clearly identifiable as ours. You grant us an irrevocable licence to enter your premises on any business day to inspect our product in your possession and your books or records regarding our product. If you wish, you may promote and on-sell our product in the ordinary course of business even if ownership of our product has not passed to you. You will hold the proceeds of sale in trust and not by way of security, for and as agent for us in a separate account, you will pay the proceeds to us as soon as you receive them and we have the right to trace and claim such proceeds. You have no right to bind us to any liability to any third party by contract or otherwise. If you use our product in some manufacturing or construction process of your own or some third party, you will hold such part of the proceeds as relates to our product in trust for us. Such part shall be deemed to equal in dollar terms the amount payable or owing by you to us at the time of the receipt of such proceeds. You will also keep separate records and clearly identify in your books your use of our product in such manufacturing or construction process.
8. Third Party Products
(b) Notwithstanding anything else, your licence to use any Third Party Products is provided by the Third Party Supplier and not us, and is subject to any terms and conditions as made available by the Third Party Supplier, including, but not limited to, warranties, ownership of intellectual property, privacy and scope of permitted use.
(c) We make no representation or commitment, and shall have no liability or obligation whatsoever, in relation to the content or use of, or correspondence or contract you have with, any such Third Party Products, or any transactions completed, and any contract entered into by you with such third party. You acknowledge that we are not an employee, franchisee, partner or joint venture of Third Party Suppliers.
(d) We do not endorse or approve any Third Party Products. It is your sole responsibility to determine that specific products or services, introduced or used by you meets the needs of your business and/or are suitable for the purposes for which they are used.
(e) You acknowledge that Third Party Suppliers are entitled, as a third party beneficiary of these terms and conditions, with the authority to independently enforce its provisions insofar as it relates to the Third Party Products and / or impacts the Third Party Supplier.
You must not assign any rights or benefits under these terms and conditions unless you have obtained our prior written consent. Any assignment by you without our consent shall entitle us to avoid any liability we may have to you under these terms and conditions.
12. Overdue Accounts
You must pay for the product by each Due Date. Any account which is not settled by the Due Date will attract a late payment fee equal to 1% of your unpaid account, charged monthly until your account is paid in full. You agree that this late payment fee is a genuine pre estimate of the loss we would suffer if you do not pay for the product by the Due Date. If the arrangements provided under this clause would otherwise constitute a credit contract as defined in the Consumer Credit Code the time for payment of any overdue account is limited to a total period not more than 62 days from the date of invoice. Nothing in this clause imposes an obligation on us to extend our payment term to you for any period at all and we will not dispatch any products nor accept any further orders you place with us if your account is outstanding beyond 60 days from the date of invoice. You agree that any discounts, rebates or other concessions are lost if payment is not made in time. If you are in breach of any of our terms and conditions you agree that you are also responsible for all of our expenses of any kind including our legal costs on a solicitor client basis and any commission or other expense incurred by any debt collection agency we retain to recover the monies you owe us. We may commence legal proceedings against you for the recovery of any account which is overdue by 60 days or more from the date of invoice.
In this clause, “Due Date” means the date specified in clause 2 on or by which you must pay your account with us.
If at any time you owe us money on any account in excess of our trading terms then in addition to any other rights we have, you agree we may enter any premises owned, possessed or controlled by you where our product is stored and remove our product and re-sell all or any of them. We are not liable to you if we take such action. If we request, you will obtain a landlord’s waiver in a form acceptable to us.
14. Replacement or Money Back
The products come with guarantees that cannot be excluded under the Commonwealth Competition and Consumer Act 2010 (Cth) ("ACL"). Nothing in these terms and conditions excludes, restricts or modifies any condition, warranty, right or remedy conferred on you by the ACL or any other applicable Law that cannot be excluded, restricted or modified by agreement. Subject to those rights that cannot be excluded under the ACL, our liability (and any Third-Party Supplier's liability) for a breach of a non-excludable condition or warranty is limited, at our option, to:
(a) in the case of goods, any one or more of 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; or the payment of the cost of having the goods repaired; or
(b) in the case of services, any one of the supplying of the services again; or the payment of the cost of having the services supplied again.
Subject to the foregoing, to the full extent of the law all other express or implied warranties or guarantees are excluded. Warranties do not apply if the product has received maltreatment, inattention or interference or the product has not been used in accordance with any performance ratings or care instructions. In no circumstances are we liable for loss of profit, loss of data, loss of business or contract or any special, indirect or consequential loss, even if you advise us of any special circumstances or such loss was reasonably foreseeable.
When you take delivery of our product, you must inspect it immediately. You must report to us in writing any damage or incorrect supply which must be received by us within 48hours of delivery otherwise we may refuse any claim you make. If our product is damaged when we deliver it to you we may accept its return and replace it with an equivalent product or credit you with the price paid, at our option. To return any product to us, you must obtain a Return Authorisation Number (RA#) from us by completing the RA form online or by contacting us at email@example.com to get a copy of the RA application form e-mailed to you.
We will accept the return of product if the product is not in accordance with your order, your proof of purchase is returned, and it is returned to us in its original condition within 14 days of the RA# being issued by us. You are responsible for the cost of returning the product to us. If you wish to return to us product which we have correctly supplied to order you must let us know within 7days of the date of delivery. If we agree to the return of such product we may charge you a handling or re-stocking fee of up to 35% of the price of product returned plus any delivery costs. If we accept the return of product which was specifically ordered from the vendor to fulfil your order or was produced to your specifications or has been damaged or altered by you, we will not credit you with the price paid for it. If you have a dispute with us, you must notify our credit department in writing of your dispute prior to the due date of your payment for our product. You may not set off against or deduct from the price of product you have ordered from us any money you claim we owe you. You agree that you shall make no claim against us for any delay in delivery or any damaged product delivered to you as a direct or indirect result of events beyond our control.
16. Conflict of Interest
These terms and conditions override your terms and conditions. To the extent of any discrepancy between these terms and conditions and any other (including your own) terms and conditions these terms and conditions prevail.
17. Minimum Purchase
You acknowledge that we may impose a minimum quantity for individual purchases as a condition of sale. We may impose a processing fee for approved purchases below the minimum quantity.
All communications between you and us including all purchase orders must be in writing (which includes by e-mail). Verbal orders must be confirmed in writing within 24 hours and will be considered as accepted by us on delivery. Unless we agree special arrangements, such as an authorisation code, we assume any order received from anyone in your employ has been placed with your authority and is binding on you. No quote is binding on us unless we have prepared and accepted a written confirmation of order. If you make a change to an order or your delivery details change which cause a delivery delay or you cancel an order less than 7 days prior to a scheduled delivery, you will pay to us a fee equal to 5% of the list price of any product affected. If you cancel an order for any product not included in our current price list, you may be subject to an additional charge. If you cancel an order or refuse to accept all or any of our products in an order other than in circumstances permitted by these terms and conditions, you will be liable for any resulting damage or loss suffered by us. If the product has been or is in the process of being manufactured or produced specifically for you, you will pay to us as liquidated damages the full price of the products and any costs incurred by us (including, without limitation, any GST) less the current scrap value of the product as determined by us.
19. Your Relationship with Us
Nothing in these terms and conditions creates any relationship of employment, agency or partnership between you and us.
20. Intellectual Property
These terms and conditions do not give you any intellectual property rights in our product. If we source, produce or manufacture any product samples or prototypes specifically for you, you do not acquire any intellectual property rights in such samples and prototypes. Your details and information that you provide us about yourself may be retained by us on our database and used by us or Third Party Suppliers. You have no rights in that database. We may use such database in the conduct of our business, subject to privacy and other relevant laws. We are not liable for any infringement or unauthorised use of any intellectual property rights arising from these terms and conditions. If any dispute or claim is made in respect of any infringement or unauthorised use of intellectual property rights we may terminate these terms and conditions by notice to you and without liability to you or any other person. In these terms and conditions, intellectual property rights includes the full benefit of any rights in any copyright, trademark, registered design, patent, trade and business names, know-how, inventions, improvements, discoveries and confidential processes and includes without limitation artistic works, images, illustrations and photographs and any adaptation or concept relating to it.
21. Governing Law
These terms and conditions are governed by, and you agree to submit to, the laws applicable in the State of New South Wales, Australia and the Commonwealth Personal Property Securities Act 2009 (PPSA).
22. Whole Agreement
Subject to clause 2, these terms and conditions form the entire agreement on which we are willing to trade with you and all or any previous agreements or understandings we may have had with you are superseded by these terms and conditions. We may vary these terms and conditions at any time by giving you notice whether in writing or in or by way of a general notification on our website. All transactions after the date specified in such notice will be subject to the altered terms and conditions. If you continue to trade with us after the date such alterations become effective you will be deemed to have agreed to the altered terms and conditions.
23. Your Obligations
You acknowledge that:
- you are not an associate or related body corporate or related party or related entity of ours (as such terms are defined in the Corporations Act 2001); and
- the Consumer Credit Code does not apply to these terms and conditions.
It is your responsibility to ensure that the contact details we have about you including your address details are correct and up to date at all times. You must promptly notify us of any change in your contact details.
If, at any time:
- you believe that you may not or may be unable to perform or comply with your obligations under these terms and conditions;
- you are unable to pay your accounts as they fall due for payment;
- a cheque or bill of exchange received from you is dishonoured;
- you are or become insolvent or you have an administrator appointed;
- your account is overdue and is not settled within our trading terms; or
- there is a change or a change is proposed to your shareholding, shareholders or directors,
you agree that:
- you will immediately notify us that one or more of the above notifiable events has occurred and you will keep us notified on a monthly basis until such notifiable event no longer exists;
- we have no obligation and will cease to deliver to you any product you have purchased while a notifiable event exists;
- we may close your account with us;
- we may request payment in advance for all products you have ordered from us; and
- we have no obligation to respond to any offer you make to purchase any of our product while a notifiable event exists.
For the purpose of these terms and conditions, you are insolvent if:
- a receiver or receiver and manager or an agent for a mortgagee in possession has been appointed over all of your assets and undertakings;
- you have passed an effective resolution for your voluntary winding-up or you have committed an act of bankruptcy;
- an order has been made by a Court of competent jurisdiction for you to be wound up;
- a compromise arrangement (excluding a voluntary administration) has been made legally binding on you and your creditors;
- you have presented a debtor’s petition and it has been accepted by the Registrar in Bankruptcy;
- you have entered into a composition, deed of assignment or deed of arrangement under Part X of the Bankruptcy Act (or equivalent) with your creditors; or
- a legally binding sequestration order has been made against your estate.
You agree that these terms and conditions create a PMSI in the product (and their proceeds) supplied presently and in the future by us to you.
You agree to do all things necessary and execute all documents reasonably required by us to register the PMSI granted by you under these terms and conditions and to ensure that we acquire a perfected security interest in the product under the PPSA.
You will, upon demand, pay all of our expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of the PMSI or any other security interest and all other costs associated with protection and enforcement of the PMSI or any other security interest created by these terms and conditions or by undertaking an audit under the provisions of the PPSA, or the repossession of the Product the subject of these terms and conditions or the exercise, enforcement or preservation of any right or interest under these terms and conditions or any contract that we have with you.
This PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of these terms and conditions and any purchase money obligations.
Until ownership of the product passes to you, you waive your rights under the following provisions of the PPSA, to the maximum extent that it is permitted by law, to:
- receive a notice of intention to remove an accession (s.95);
- receive a notice that we have determined to enforce our security interest in accordance with land law (s118);
- receive a notice of enforcement action against liquid assets;
- receive a notice of disposal of the product by way of us purchasing the product from us (s129);
- receive a notice of disposal of the product (s130);
- receive a statement of account following disposal of the product (s132(2));
- receive a statement of account every 6 months where there has been no disposal of the product (s152(4));
- receive notice of retention of the product by us (s135(2));
- object to any proposal by us to either retain and dispose of the product (s137(3));
- redeem the product before we dispose of it (s142);
- reinstate the security agreement (s143); and
- receive any verification statement in relation to any registration event to which you are a party (s157(1) and 157(3)).
To the extent permitted by the PPSA, these terms and conditions exclude any provisions of the PPSA which may be excluded in our discretion and which would otherwise confer rights on you.
You further agree that where we have rights in addition to those under Part 4 of the PPSA, those rights shall continue to apply.
Your right to possession of goods still owned by us under these terms and conditions shall cease if:
(a) you being an individual, commit an act of bankruptcy, or ,
(b) you being a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of your assets, any proceedings are instituted for your winding up, or you enter into a Deed of Company Arrangement, or
(c) you cease or threaten to cease conducting business in the normal manner or apply for deregistration or receive a deregistration notice, or
(d) any cheque you provide to us is dishonoured for payment, or
(e) you fail to comply with any demand for payment issued by us, or
(f) you breach any of the terms and conditions contained herein and/or are in default of any other agreement between us and you.
You agree that we are entitled to enter any premises where the product supplied by us and still unpaid for is located and to repossess, remove and sell such product. You agree to indemnify and keep us indemnified in respect of any claims, actions and costs that may arise against us in relation to the removal, repossession and sale of the product pursuant to these terms and conditions including any claims brought by third parties.
You agree that repossession and retention of the product pursuant to the PPSA will only satisfy so much of the monies which may become payable to us by you, as is equivalent to our estimation of the market value of the product as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest you have on the product value of product recovered.
Until ownership of the product passes, you must not give us a written demand or allow any other person to give us a written demand requiring us to register a financing change statement under the PPSA or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA.
You agree not to change your name or undertake any changes to any documents that we have registered require to be registered or are capable of being registered without our prior written consent.
25. Fitness For Purpose
To the maximum extent permitted by law, you agree that you do not rely on our skill or judgement in relation to the suitability of any goods for a particular purpose. Any advice, recommendation, information or assistance provided by us is provided without any liability whatsoever.
(c) Your use of Third Party Products may also be subject to the privacy policies of Third Party Suppliers.
You hereby charge all property, both equitable and legal, present or future of yours and the Company/Trustee Company/Trust/Sole Trader/Partnership (as applicable), in respect of any monies that may hereinafter be owing to us under this credit application and terms and conditions by you or otherwise. You hereby authorise us or our solicitors to execute any consent form as your attorney for the purpose of registering a mortgage or caveat over any real property owned by you and any of the Company/Trustee Company/ Trust/ Sole Trader/ Partnership (as applicable) at any time, or to register this charge over your assets and the Company/ Trustee Company/Trust/Sole Trader/Partnership (as applicable) with the Australian Securities and Investments Commission or any other applicable regulatory body. The costs and stamp duty payable on the mortgage or caveat are payable by you.
28. Trust and Trustees
Where you are a trustee:
(a) You agree to produce a stamped copy of the trust deed (with all amendments) if and when requested by us.
(b) You warrant that you have full power and authority to enter into this agreement on behalf of the trust and that the trust shall be bound by these terms and conditions both personally and as trustee, irrespective of whether or not you or the trust disclose to us that if you are a trustee at the time of entering into any credit agreement with us.
We may in our sole discretion assign, subcontract or sub licence any or all of our obligations under these terms and conditions from time to time. Any time, indulgence, waiver or non-exercise by us of any of these terms and conditions shall not affect any of our rights under these terms and conditions nor shall it be deemed a waiver by us of any provision of these terms and conditions or subsequent breach of these terms and conditions.
In these terms and conditions unless otherwise indicated by the context: (i) reference to a party to a document includes that party’s successors and permitted assigns; (ii) “including” and other similar words are not words of limitation; (iii) an agreement, deed, covenant, representation or warranty on the part of two or more persons binds them jointly and severally; (iv) general words following words describing a particular class or category are not restricted to that class or category; (v) “Law” means any Commonwealth or Australian state legislation regulations and the general law and includes in particular the Commonwealth Competition and Consumer Act 2010 and regulations as amended from time to time and the Commonwealth Personal Property Securities Act 2009 and regulations as amended from time to time; (vi) “PPSA” means Personal Property Securities Act 2009; “Purchase Monies Securities Interest” or “PMSI” has the meaning given in section 14 of the PPSA; (vii) “Corporations Act 2001” means the Commonwealth Corporation Act 2001 as amended from time to time; (viii) “Third Party Product” means software, products and services that are provided by third parties or interoperate with our product and/or that may be identified as a third party product; and (ix) “Third Party Suppliers” means the suppliers or vendors of the Third Party Products.