General Terms and Conditions
These General Terms & Conditions (“Terms”) apply to all supplies of Goods by Southcott Pty Ltd ABN 27 007 870 662 (“Company”) to the Customer named in the Application. These Terms also apply to any Order relating to such Goods, unless otherwise agreed in writing by the Company.
1. Agreement
1.1 The Customer agrees to purchase, and the Company agrees to supply, the Goods for the Price in accordance with these Terms.
1.2 Where the Company provides the Customer with ongoing commercial credit facilities, the Customer acknowledges and agrees that these Terms govern all supplies of Goods made on credit, including the Company’s right to payment.
1.3 These Terms take precedence over any terms provided by the Customer, unless the Company agrees otherwise in writing. To the extent of any inconsistency between these Terms and any Customer terms, these Terms will prevail.
2. Orders
2.1 Any Order (quotation) for the Goods from the Company automatically expires after 30 days of its date of issue. Goods ordered after that time may be subject to Price changes. Unless otherwise stated, the Price is exclusive of GST.
2.2 The Customer accepts these Terms upon the occurrence of the earliest of the following:
2.2.1 providing written confirmation of acceptance of the Order (quotation) to the Company; or
2.2.2 making partial (including a Deposit) or full payment for the Goods as specified on the Order (invoice).
2.3 No cancellation of or variation to an Order (purchase order) after the Company issues an Order confirmation will be effective unless agreed to in writing by the Company.
2.4 The Customer acknowledges that it has relied solely on its own skill and judgment in placing an Order (purchase order) and purchasing the Goods.
2.5 Subject to clause 2.5.2, an indicative order placed by the Customer is non-binding and does not create any obligation on the Company to supply the Goods and is an offer by the Customer to the Company. The Company may, at its discretion:
2.5.1 provide the Customer with information regarding the availability of the relevant Goods or an estimated delivery timeframe. Such information is provided for guidance only and does not constitute a representation or warranty that the Goods will be available at the time a formal Order is placed; and
2.5.2 accept the Customer’s offer and issue to the Customer an invoice based upon the information contained in an indicative order and the Company will supply the Goods identified in the invoice and the Customer will be liable to pay the Company the amount referred to in the invoice.
2.6 The Company is not liable for any non-delivery, delay, or associated loss or damage incurred by the Customer arising from the Customer’s reliance on information concerning an indicative order provided by the Company.
3. Payment Terms
3.1 The Company will issue to the Customer a valid tax invoice for the Goods. The Customer agrees to pay all invoices within 30 days of the end of month in which the invoice is dated, or as otherwise agreed in writing by the Company. Payments must be made in full, without deduction, set-off or counter-claim.
3.2 The Company may request a Deposit, as specified on the Order (invoice). If required, the Deposit will be non-refundable, except as required under ACL or if the Company fails to supply the Goods.
3.3 The Customer must strictly adhere to the payment terms set out in this clause 3. Subject to clause 3.4, failure to do so will constitute a breach of these Terms. In such cases, the Company may, at its discretion, either:
3.3.1 terminate these Terms in accordance with clause 10.1.2; or
3.3.2 immediately suspend or cancel the Customer’s Account (if applicable), pending resolution of the breach.
3.4 If the Customer disputes any amount claimed by the Company, the Customer will pay the amount (if any) which is not disputed and as soon as reasonably practicable notify the Company of the amount in dispute and provide written reasons for disputing it. If a dispute in relation to payment arises the procedure under clause 16 must be followed.
3.5 In the event of non-payment of the Goods in accordance with these Terms and the relevant invoice, the Customer will pay all reasonable collection expenses, legal costs and any other reasonable expenses incurred by the Company in connection with the non-payment by the Customer.
3.6 Interest may be charged on any overdue amounts at a rate of 2% per calendar month (or part thereof), and the Customer agrees to pay all such interest.
3.7 The Customer is liable for, and agrees to pay, all fees and costs incurred by the Company as a result of any cheque or electronic banking transaction being dishonoured, including any reasonable administration fee as determined by the Company from time to time.
4. Cancellation
4.1 The Company may cancel or postpone delivery of the Goods at any time prior to delivery by giving reasonable prior notice to the Customer. If the Company cancels an Order, it will refund any amounts already paid by the Customer in respect of the cancelled Goods.
4.2 To the extent permitted by law, the Company is not liable for any loss or damage (including consequential loss) arising from any cancellation or postponement in delivery, or failure to deliver the Goods due to circumstances beyond its reasonable control.
4.3 If the Customer cancels an Order, the Customer will be liable for any reasonable costs incurred by the Company up to the time of cancellation, including any applicable restocking fees, and handling charges, in accordance with the Company’s Goods Return Policy.
5. Delivery
5.1 The Company will use reasonable endeavours to deliver the Goods to the Customer on the delivery date at the delivery location as detailed in the Order.
5.2 Freight is always payable by the Customer unless otherwise stated in the Order.
5.3 The Company will not be liable for any claim or cost incurred or suffered by the Customer as a result of delay later than the estimated delivery times, or non-delivery of Goods due to circumstances outside of the Company’s reasonable control.
6. Defects
6.1 The Customer must inspect the Goods within 48 hours of delivery and notify the Company in writing of any defects or failure to supply the Goods of the relevant Order. The Customer will, within a reasonable time following delivery, grant the Company access to the Goods to inspect for any alleged defects. If the Company accepts that the Goods are Defective, the Company’s liability will be limited to the remedies set out in clause 10.
6.2 If the Customer fails to notify the Company within the period specified in clause 6.1 then the Goods shall be deemed to be in compliance with the Order and free from any defect whatsoever.
7. Title & Risk
7.1 Title to the Goods remains with the Company and does not pass to the Customer until the Company has received payment in full, in cleared funds, for all Goods supplied and for all other amounts owing by the Customer to the Company.
7.2 Risk in the Goods will pass to the Customer immediately upon delivery to the address notified to the Company by the Customer or collection by the Customer (as applicable).
7.3 If any of the Goods are lost, damaged or destroyed prior to the title passing to the Customer, the Company is entitled, without affecting any other rights and remedies it may have under these Terms or at law, to any insurance proceeds payable for the Goods.
7.4 If the Customer has not fully paid for the Goods but sells or otherwise disposes of them whether in the same form as supplied or incorporated into any plant or equipment, the sale proceeds or monies received in respect of disposal or the amount attributable to the Goods will upon receipt by the Customer be held by the Customer as trustee for the Company until all amounts owing have been paid.
7.5 If payment of the Price is not made in accordance with these Terms, the Company may, without prejudice to its other rights, recover, remove, or resell any Goods. Its agents may enter any premises where the Goods are located without trespass. The Company is not liable for, and the Customer indemnifies it against, any reasonable damage or loss arising from such actions.
8. PPSA
8.1 The Customer acknowledges and agrees that to the extent that these terms provide for the retention of title of the Goods in accordance with clause 7:
8.1.1 these terms constitute a Security Agreement for the purposes of the PPSA;
8.1.2 the Customer will grant the Company a purchase money security interest (“Security Interest”) under the PPSA in the Goods and their proceeds to secure all amounts owed to the Company by the Customer;
8.1.3 the Company may register the Security Interest on the PPSR under the PPSA;
8.1.4 until all Monies owing to the Company are paid in full, it shall not sell or grant any other Security Interest in the Goods.
8.2 The Customer undertakes to:
8.2.1 do all things necessary and provide the Company on request all information the Company requires to register a financing statement or financing charge statement on the PPSR;
8.2.2 not to change its name in any form or other details on the PPSR without first notifying the Company;
8.2.3 not register a financing change statement in respect of the security interest without the Company's prior written consent; and
8.2.4 if requested by the Company, pay to the Company the cost of registering and maintaining registration of the Company’s Security Interest on the PPSR, within 14 days of the request.
8.3 The Company is not required to provide any notice under the PPSA (including a verification statement or a financing change statement) unless that notice is required by the PPSA and cannot be lawfully excluded. Any notices or documents to be given to the Company under the PPSA must be provided in accordance with the PPSA.
8.4 The Customer agrees that the Company may, at its absolute discretion, apply any amounts received from the Customer toward amounts owing to the Company in such order as the Company may determine.
8.5 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these Terms, the parties agree that the following provisions of the PPSA will not apply, or are waived, as the context requires:
8.5.1 section 95 (notice of removal of accession);
8.5.2 section 96 (when a person with an interest in the whole may retain an accession);
8.5.3 sections 121(4) (enforcement of liquid assets – notice to a higher party);
8.5.4 section 125 (obligation to dispose of or retain collateral);
8.5.5 section 130 (notice of disposal);
8.5.6 sections 132(3)(d) (contents of statement of account after disposal);
8.5.7 section 132(4) (right to receive a statement of account);
8.5.8 section 134(1) (retention of collateral);
8.5.9 section 135 (notice of retention);
8.5.10 section 142 (redemption of collateral); and,
8.5.11 section 143 (reinstatement of security agreement).
8.6 Neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA (except in circumstances required by section 275(7) of the PPSA) and the Customer must not authorise the disclosure of such information without the Company’s prior written consent.
8.7 Unless otherwise defined in these Terms, the terms and expressions used in these Terms have the meanings given to them, or by virtue of, the PPSA.
9. Warranty & Returns
9.1 The Company warrants that the Goods supplied will be of merchantable quality and free from defects in materials and workmanship (“Warranty”) for a period of 12 months from the date of invoice or 1,000 hours of operation, whichever occurs first (“Warranty Period”).
9.2 During the Warranty Period, the Company will, at its election, repair, replace, resupply, or refund the purchase price of any Defective Goods, in accordance with clause 11.1.
9.3 The Warranty applies only to Defects arising from normal and proper use of the Goods and does not cover damage or defects to the Goods caused by the Customer’s:
9.3.1 misuse, neglect, or accident;
9.3.2 inadequate maintenance;
9.3.3 unauthorised disassembly, modification, or repair;
9.3.4 improper storage; or
9.3.5 failure to follow the Company’s published instructions or recommendations for installation, operation, or servicing.
9.4 The Customer indemnifies, and will continue to indemnify, the Company against any Claim arising from or in connection with the Customer’s use of the Goods in a manner excluded under clause 9.3.
9.5 To the extent permitted by law, the Company does not warrant that the Goods are fit for a particular purpose and, except or unless otherwise stated herein, warranties relating to title, defects or conformity of the Goods are expressly excluded.
9.6 Except as required by mandatory operation of the law, all conditions or warranties in respect of the Goods, express or implied, statutory or otherwise, are excluded.
9.7 If ACL applies, the Customer has the benefit of guarantees in relation to the Goods that cannot be excluded, restricted or modified. Nothing in these Terms is intended to exclude, restrict or modify rights which the Customer may have under ACL or any other applicable legislation that cannot be excluded, restricted or modified by agreement.
9.8 Returns may be accepted by the Company only if prior arrangements have been made, and are subject to the Company’s Goods Return Policy, as amended from time to time. Charges, including re-stocking fees, may apply.
10. Termination
10.1 These Terms may be immediately terminated by the Company if:
10.1.1 the Customer is in breach of these Terms and fails to remedy that breach within 7 days of receiving notice to do so; or
10.1.2 the Customer fails to pay any amount outstanding to the Company after receiving 7 days prior notice that the amount is outstanding.
10.2 Either party may terminate these Terms immediately by written notice to the other if:
10.2.1 the defaulting party commits a material breach of these Terms and that breach is not rectified within 30 days of being notified; or
10.2.2 the defaulting party is presumed insolvent within the meaning of any applicable law, is made bankrupt, is placed into liquidation or any other form of administration relating to insolvent debtors or has a third party take possession of any substantial asset(s) of the defaulting party or if any proceedings are issued or an event occurs intended to lead to any of those consequences.
11. Liability
11.1 To the maximum extent permitted by law:
11.1.1 in respect of any Defective Goods, the sole liability of the Company to the Customer will be, at the Company’s election, either:
11.1.1.1 the repair, replacement or resupply of the Defective Goods; or
11.1.1.2 a refund of the Price paid by the Customer for the Defective Goods;
11.1.2 for any other Claim arising out of or in connection with these Terms, any contract between the parties, or the supply of Goods (whether in contract, tort, statute, negligence, or otherwise), the Company’s total liability is limited to the repair or replacement of the Goods, or the amount paid or payable by the Customer to the Company for the Goods, whichever the Company elects.
11.2 To the extent permitted by law, neither party will be liable to the other for any Claim of any kind arising directly or indirectly (whether in contract, tort, statute, negligence, or otherwise) in relation to any indirect or consequential loss (including any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
12. Credit
12.1 The Customer agrees that the Company may use and seek information from credit reporting bodies including:
12.1.1 a commercial credit report in order to assess an Application; and
12.1.2 a commercial credit report for the purpose of assisting in the collection of Monies owing;
12.1.3 in accordance with the Privacy Act, the Company in assessing an Application may use and seek from a credit provider named in an Application or in a commercial credit report (if applicable) personal information including default information, repayment history or consumer credit liability information of the Customer and any entity named in the Application; and
12.1.4 the Company may disclose personal information concerning the Customer to another credit provider for any purpose listed in clause 12.1.3, subject to any restrictions in the Privacy Act.
13. Privacy
Personal information [or any credit related personal information collected,] used and disclosed by the Company will be governed by the Company’s Privacy Policy located at <https://www.southcott.com.au/privacy-policy>.
14. Confidentiality
Both the Company and the Customer must keep these Terms and any confidential information private, unless disclosure is required by law or to a legal adviser. Confidential information includes anything the Company marks as confidential or that the Customer knows (or should reasonably know) is confidential.
15. Force Majeure
A party is not liable for failing to perform its obligations under this Agreement (except for paying money) if the failure is caused by an event beyond its reasonable control, such as an act of God, war, national emergency, government restrictions, or a labour dispute not involving its own employees, or changes in applicable laws or regulations. The affected party must promptly notify the other party and take reasonable steps to overcome or minimise the effect of the event.
16. Dispute Resolution
16.1 If any dispute arises in connection with these Terms or the supply of the Goods the party raising the dispute will provide reasonable details of the dispute in writing to the other party. Before commencing any legal action or proceedings the parties must attempt to resolve the dispute by agreement through good faith negotiations.
16.2 Nothing in this clause 16 prevents a party from seeking urgent injunctive relief.
17. Notices
17.1 Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorised officers.
17.2 The notice may be emailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
18. Variation
The Company reserves the right to vary these Terms from time to time. The Company will give the Customer 30 days’ notice of any variation to these Terms. If the Customer does not accept the variation to these Terms, the Customer must advise the Company in writing within the 30-day notice period, otherwise the Customer will be deemed to have accepted the varied terms.
19. Severability
If any part of these Terms is found to be unenforceable or invalid, that part will be severed, and the remainder of the Terms will continue in full force.
20. Relationship
Nothing in these Terms will be construed as constitution a party as the agent, employee, joint venturer or partner of the other party.
21. Entire Agreement
These Terms constitute the entire agreement between the parties regarding the subject matter, supersede any prior agreements or understandings.
22. Governing Law
These Terms are to be governed and interpreted in accordance with the laws of the State of South Australia and the Customer submits to the exclusive jurisdiction of the courts of South Australia.
23. Interpretation and definitions
In these Terms, unless a contrary intention appears:
23.1 a provision of these Terms must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms;
23.2 the word “including” is to be contrasted without limitation;
23.3 if a party consists of more than one person, their obligations are joint and several, and each person is separately entitled to any rights. References to that party include each person individually (for example, each gives representations, warranties, and undertakings separately);
23.4 “Account” means each account of the Application with the Company for Monies owing in relation to the supply of Goods;
23.5 “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
23.6 “Application” means the application for commercial credit submitted by the Customer in accordance with, and annexed to, these Terms, including any requested or proposed Credit Limit;
23.7 “Claim” means any claim, action, proceeding, demand, cost, damage, loss, expense, liability incurred or suffered by, or brought or made or recovered against any person and however arising (whether or not presently ascertained, immediate, future or contingent);
23.8 “Credit Limit” means the credit limit approved by the Company upon acceptance of an Application or such other limit notified to the Customer from time to time by the Company and includes invoiced amounts;
23.9 “Customer” means the person or entity that purchases, or agrees to purchase, Goods from the Company, as identified in any Order. Where applicable, the Customer includes the applicant named in the Application;
23.10 "Defective" means not of a merchantable quality;
23.11 “Deposit” means a non-refundable deposit as specified in the Order, calculated in proportion to the Company’s reasonable business expenses and time.;
23.12 “Goods” means goods and/or services supplied or to be supplied by the Company to the Customer or ordered by the Customer but not yet supplied, and includes goods and/or services described on any Order, including any recommendations and advice and over which the Company may intend to register a Security Interest;
23.13 “Goods Return Policy” means the Company’s policy governing the return of Goods, including applicable restocking fees, handling charges, and conditions for acceptance of returns, as amended from time to time and published at < https://www.southcott.com.au/goods-return-policy >.
23.14 “GST” has the same meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
23.15 “Monies” means all Monies now or in the future owing by the Customer to the Company on any account and includes any part of those Monies and interest;
23.16 “Order” means any quotation, purchase order, order confirmation, invoice or other documentation relating to the Goods issued by the Company to the Customer, unless otherwise expressly provided;
23.17 “PPSA” means the Personal Properties Securities Act 2009 (Cth);
23.18 “PPSR” means the Personal Property Securities Register established under the PPSA;
23.19 “Price” means the price of the Goods as specified in the Company’s current price list or Order as applicable from time to time;
23.20 “Privacy Act” means the Privacy Act 1988 (Cth).
PL035; V1
