1.1 “Aussie Optical” shall mean Aussie Optical Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Aussie Optical Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Aussie Optical to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Aussie Optical to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Aussie Optical to the Customer.
1.5 “Services” shall mean all Services supplied by Aussie Optical to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Aussie Optical and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 8 (Defects), clause 9 (Returns) and clause 10 (Warranty) may NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3.1 Any instructions received by Aussie Optical from the Customer for the supply of Goods and/or the Customer's acceptance of Goods supplied by Aussie Optical shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Aussie Optical.
3.4 The Customer shall give Aussie Optical not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Aussie Optical as a result of the Customer's failure to comply with this clause.
3.5 Goods are supplied by Aussie Optical only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment
4.1 At Aussie Optical's sole discretion the Price shall be either:
(a) as indicated on invoices provided by Aussie Optical to the Customer in respect of Goods supplied; or (b) Aussie Optical's current price at the date of delivery of the Goods according to Aussie Optical's current Price list; or
(c) Aussie Optical's quoted Price (subject to clause 4.2) which shall be binding upon Aussie Optical provided that the Customer shall accept Aussie Optical's quotation in writing within thirty (30) days.
4.2 Aussie Optical reserves the right to change the Price in the event of a variation to Aussie Optical's quotation or Price list. Any variation from the quotation or Price list (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or as a result of increases to Aussie Optical in the cost of materials and labour) will be charged for on the basis of Aussie Optical's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Aussie Optical's sole discretion a deposit may be required.
4.4 At Aussie Optical's sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer's address or address for notices.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Aussie Optical.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At Aussie Optical's sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Aussie Optical's address; or
(b) the Customer takes possession of the Goods at the Customer's nominated address (in the event that the Goods are delivered by Aussie Optical or Aussie Optical's nominated carrier); or
(c) the Customer's nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer's agent.
5.2 At Aussie Optical's sole discretion the costs of delivery are: (a) in addition to the Price; or (b) for the Customer's account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Aussie Optical shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 Aussie Optical may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of Aussie Optical to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Aussie Optical shall not be liable for any loss or damage whatsoever due to failure by Aussie Optical to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of Aussie Optical.
6.1 If Aussie Optical retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Aussie Optical is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Aussie Optical is sufficient evidence of Aussie Optical's rights to receive the insurance proceeds without the need for any person dealing with Aussie Optical to make further enquiries.
6.3 Where the Customer expressly requests Aussie Optical to leave Goods outside Aussie Optical's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer's sole risk and it shall be the Customer's responsibility to ensure the Goods are insured adequately or at all.
7.1 Aussie Optical and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid Aussie Optical all amounts owing for the particular Goods; and (b) the Customer has met all other obligations due by the Customer to Aussie Optical in respect of all contracts between Aussie Optical and the Customer.
7.2 Receipt by Aussie Optical of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Aussie Optical's ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Aussie Optical shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Aussie Optical to the Customer Aussie Optical may give notice in writing to the Customer to return the Goods or any of them to Aussie Optical. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Aussie Optical shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Aussie Optical then Aussie Optical or Aussie Optical's agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Aussie Optical has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Aussie Optical for the Goods, on trust for Aussie Optical; and
(f) the Customer shall not deal with the money of Aussie Optical in any way which may be adverse to Aussie Optical; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Aussie Optical; and
(h) Aussie Optical can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Aussie Optical will be the owner of the end products.
8.1 The Customer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify Aussie Optical of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Aussie Optical an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Aussie Optical has agreed in writing that the Customer is entitled to reject, Aussie Optical's liability is limited to either (at Aussie Optical's discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 8.1; and
(b) Aussie Optical has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer's cost within thirty (30) days of the delivery date; and
(d) Aussie Optical will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Aussie Optical may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
10.1 For Goods not manufactured by Aussie Optical, the warranty shall be the current warranty provided by the manufacturer of the Goods. Aussie Optical shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.2 To the extent permitted by statute, no warranty is given by Aussie Optical as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Aussie Optical shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. Intellectual Property
11.1 Where Aussie Optical has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Aussie Optical, and shall only be used by the Customer at Aussie Optical's discretion.
11.2 The Customer warrants that all designs or instructions to Aussie Optical will not cause Aussie Optical to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify Aussie Optical against any action taken by a third party against Aussie Optical in respect of any such infringement.
11.3 The Customer hereby authorises Aussie Optical to utilise images of the Goods designed or drawn by Aussie Optical in advertising, marketing, branding, trade marking or competition material by Aussie Optical.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Aussie Optical's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer's payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Aussie Optical.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Aussie Optical from and against all costs and disbursements incurred by Aussie Optical in pursuing the debt including legal costs on a solicitor and own client basis and Aussie Optical's collection agency costs.
12.4 Without prejudice to any other remedies Aussie Optical may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Aussie Optical may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Aussie Optical will not be liable to the Customer for any loss or damage the Customer suffers because Aussie Optical has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to Aussie Optical's other remedies at law Aussie Optical shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Aussie Optical shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Aussie Optical becomes overdue, or in Aussie Optical's opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which Aussie Optical may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Aussie Optical or Aussie Optical's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Aussie Optical (or Aussie Optical's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Aussie Optical elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Aussie Optical from and against all Aussie Optical's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Aussie Optical or Aussie Optical's nominee as the Customer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 Aussie Optical may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Aussie Optical shall repay to the Customer any sums paid in respect of the Price. Aussie Optical shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Aussie Optical (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Customer's specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for Aussie Optical to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Aussie Optical.
15.2 The Customer and/or the Guarantor/s agree that Aussie Optical may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to Aussie Optical being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by Aussie Optical for the following purposes and for other purposes as shall be agreed between the Customer and Aussie Optical or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Aussie Optical, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Goods.
15.5 Aussie Optical may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16. Export Contracts
16.1 In the event that the Goods are exported, delivery of the Goods may be subject to either FOB Contract or CIF Contract.
16.2 In the event of a FOB Contract the following shall apply;
17. the Goods shall be delivered to the Buyer by delivery on board the agreed upon mode of transport on the delivery date. The Seller shall promptly notify the Buyer that the Goods have been delivered aboard. Title (subject to clause 7) to, and risk in the Goods shall pass to the Buyer upon such delivery being effected. The Seller shall promptly provide the Buyer with a clean shipped bill of lading in respect of the Goods.
18. the Buyer shall reserve the necessary space on board the agreed upon mode of transport and give the Seller due notice of the loading berth and any revised delivery dates. The Buyer shall bear any additional costs caused due to the failure of the agreed upon mode of transport being available to load the Goods on the delivery date.
18.1 In the event of a CIF contract the following shall apply:
19. the Goods shall be delivered to the Buyer by delivery on board the agreed upon mode of transport on or before the delivery date. The Seller shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Buyer. The Goods shall be at the risk of the Buyer as they are loaded on board. The Seller shall promptly tender to the Buyer a clean shipped bill of lading, the insurance policy and an invoice in respect of the Goods.
20. the Buyer shall accept the documents tendered by the Seller if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.
21.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
21.3 Aussie Optical shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Aussie Optical of these terms and conditions.
21.4 In the event of any breach of this contract by Aussie Optical the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
21.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Aussie Optical nor to withhold payment of any invoice because part of that invoice is in dispute.
21.6 Aussie Optical may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
21.7 The Customer agrees that Aussie Optical may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Aussie Optical notifies the Customer of such change.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9 The failure by Aussie Optical to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Aussie Optical's right to subsequently enforce that provision.