1.1 “Seller” means PNOA Pty Ltd T/A Perfume Network of Australia, its successors and assigns or any person acting on behalf of and with the authority
of PNOA Pty Ltd T/A Perfume Network of Australia.
1.2 “Client” means the person/s buying the Goods as specified in
any invoice, document or order, and if there is more than one Client is a
reference to each Client jointly and severally.
1.3
“Goods”
means all Goods or Services supplied by the Seller to the Client at the
Client’s request from time to
time (where the context so permits the terms ‘Goods’ or
‘Services’ shall be interchangeable for the other).
1.4
“Price”
means the Price payable for the Goods as agreed between the Seller and the
Client in accordance with clause 4 below.
2.
Acceptance
2.1 The Client is taken to
have exclusively accepted and is immediately bound, jointly and severally, by
these terms and conditions if the Client places an order for or accepts
delivery of the Goods.
2.2
These terms and conditions may only be amended
with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other
document or agreement between the Client and the Seller.
3.
Change in Control
3.1
The Client
shall give the Seller not less than fourteen (14) days prior written notice of
any proposed change of ownership of the Client and/or any other change in the
Client’s details (including but not limited to, changes in the
Client’s name, address, contact phone or fax number/s, or business
practice). The Client shall be liable for any loss incurred by the Seller as a
result of the Client’s failure to comply with this clause.
4.1
At
the Seller’s sole discretion the Price shall be either:
(a)
as
indicated on any invoice provided by the Seller to the Client; or
(b)
the
Seller’s quoted price (subject to clause 4.2) which will be valid
for the period stated in the quotation or otherwise for a period of thirty (30)
days.
4.2 The Seller reserves
the right to change the Price in the event of a variation to the Seller’s
quotation. Any variation from the specifications of the Goods (including, but not
limited to, any variation as a result of fluctuations in currency exchange
rates or ocean and air freight costs) will be charged for on the basis of the
Seller’s quotation and will be shown as variations on the invoice.
4.3
At
the Seller’s sole discretion a deposit may be required.
4.4
Time
for payment for the Goods being of the essence and will be stated on the
invoice or any other forms. If no time is stated then payment shall be due
prior to delivery of the Goods.
4.5
The
Price will be payable by the Client on the date/s determined by the Seller,
which may be:
(a)
on
delivery of the Goods;
(b)
before
delivery of the Goods;
(c)
for
approved Clients thirty (30) days following the end of the month in which a
statement is posted to the Client’s address or address for notices;
(d)
the
date specified on any invoice or other form as being the date for payment; or
(e)
failing
any notice to the contrary, the date which is seven (7) days following the date
of any invoice given to the approved Client by the Seller.
4.6
Payment
may be made by cash, cheque, bank cheque, electronic/on-line banking, credit
card (plus a surcharge of up to three percent (3%) of
the Price), or by any other method as agreed to between the Client and the
Seller.
4.7
Unless
otherwise stated the Price does not include GST. In addition to the Price the
Client must pay to the Seller an amount equal to any GST the Seller must pay
for any supply by the Seller under this or any other agreement for the sale of
the Goods. The Client must pay GST, without deduction or set off of any other
amounts, at the same time and on the same basis as the Client pays the Price.
In addition the Client must pay any other taxes and duties that may be
applicable in addition to the Price except where they are expressly included in
the Price.
5.
Delivery of Goods
5.1
Delivery
(“Delivery”) of the Goods is taken to occur at the time that:
(a)
the
Client (or the Client’s nominated carrier) takes possession of the Goods
at the Seller’s address; or
(b)
the
Seller (or the Seller’s nominated carrier) delivers the Goods to the
Client’s nominated address even if the Client is not present at the
address; or
(c) the
type of delivery contract applicable to international sales shall be specified
in writing on the Seller’s quotation as defined in accordance with the
Incoterms.
5.2
At
the Seller’s sole discretion the cost of delivery is either included in
the Price or is in addition to the Price.
5.3
The
Client must take delivery by receipt or collection of the Goods whenever they
are tendered for delivery. In the event that the Client is unable to take
delivery of the Goods as arranged then the Seller shall be entitled to charge a
reasonable fee for redelivery and/or storage.
5.4 Delivery
of the Goods to a third party nominated by the Client is deemed to be delivery
to the Client for the purposes of this agreement.
5.5 The
failure of the Seller to deliver shall not entitle either party to treat this
contract as repudiated.
5.6 The
Seller shall not be liable for any loss or damage whatsoever due to failure by
the Seller to deliver the Goods (or any of them) promptly or at all, where due
to circumstances beyond the control of the Seller.
6.
Risk
6.1
Risk
of damage to or loss of the Goods passes to the Client on Delivery and the
Client must insure the Goods on or before Delivery.
6.2
If
any of the Goods are damaged or destroyed following delivery but prior to
ownership passing to the Client, the Seller is entitled to receive all
insurance proceeds payable for the Goods. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to
receive the insurance proceeds without the need for any person dealing with the
Seller to make further enquiries.
6.3
If
the Client requests the Seller to leave Goods outside the Seller’s
premises for collection or to deliver the Goods to an unattended location then
such Goods shall be left at the Client’s sole risk.
7.
Title
7.1
The
Seller and the Client agree that ownership of the Goods shall not pass until:
(a)
the
Client has paid the Seller all amounts owing to the Seller; and
(b)
the
Client has met all of its other obligations to the Seller.
7.2
Receipt
by the Seller 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.
7.3
It
is further agreed that:
(a)
until
ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is
only a bailee of the Goods and must return the Goods
to the Seller on request.
(b)
the
Client holds the benefit of the Client’s insurance of the Goods on trust
for the Seller and must pay to the Seller the proceeds of any insurance in the
event of the Goods being lost, damaged or destroyed.
(c)
the
Client must not sell, dispose, or otherwise part with possession of the Goods
other than in the ordinary course of business and for market value. If the
Client sells, disposes or parts with possession of the Goods then the Client
must hold the proceeds of any such act on trust for the Seller and must pay or
deliver the proceeds to the Seller on demand.
(d)
the
Client should not convert or process the Goods or intermix them with other
goods but if the Client does so then the Client holds the resulting product on
trust for the benefit of the Seller and must sell, dispose of or return the
resulting product to the Seller as it so directs.
(e)
the
Client irrevocably authorises the Seller to enter any premises where the Seller
believes the Goods are kept and recover possession of the Goods.
(f)
the
Seller may recover possession of any Goods in transit whether or not delivery
has occurred.
(g)
the
Client shall not charge or grant an encumbrance over the Goods nor grant nor
otherwise give away any interest in the Goods while they remain the property of
the Seller.
(h)
the
Seller may commence proceedings to recover the Price of the Goods sold
notwithstanding that ownership of the Goods has not passed to the Client.
8.
Personal Property
Securities Act 2009 (“PPSA”)
8.1
In
this clause financing statement, financing change
statement, security agreement, and security interest has the meaning given to
it by the PPSA.
8.2
Upon
assenting to these terms and conditions in writing the Client acknowledges and
agrees that these terms and conditions constitute a security agreement for the
purposes of the PPSA and creates a security interest in all Goods that have
previously been supplied and that will be supplied in the future by the Seller
to the Client.
(ii)
register any other document required to be
registered by the PPSA; or
(iii) correct a
defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon
demand reimburse, the Seller for all expenses incurred in registering a
financing statement or financing change statement on the Personal Property
Securities Register established by the PPSA or releasing any Goods charged
thereby;
(c) not register a
financing change statement in respect of a security interest without the prior
written consent of the Seller;
(d) not register, or
permit to be registered, a financing statement or a financing change statement
in relation to the Goods in favour of a third party without the prior written
consent of the Seller;
(e) immediately advise the
Seller of any material change in its business practices of selling the Goods
which would result in a change in the nature of proceeds derived from such
sales.
8.4
The
Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not
apply to the security agreement created by these terms and conditions.
8.6
The
Client waives their rights as a grantor and/or a debtor under sections 142 and
143 of the PPSA.
8.7
Unless
otherwise agreed to in writing by the Seller, the Client waives their right to
receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must
unconditionally ratify any actions taken by the Seller under clauses 8.3 to 8.5.
8.9 Subject to any express
provisions to the contrary nothing in these terms and conditions is intended to
have the effect of contracting out of any of the provisions of the PPSA.
9.1 In consideration of
the Seller agreeing to supply the Goods, the Client charges all of its rights,
title and interest (whether joint or several) in any land, realty or other
assets capable of being charged, owned by the Client either now or in the
future, to secure the performance by the Client of its obligations under these
terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies
the Seller from and against all the Seller’s costs and disbursements
including legal costs on a solicitor and own client basis incurred in
exercising the Seller’s rights under this clause.
9.3
The
Client irrevocably appoints the Seller and each director of the Seller as the
Client’s true and lawful attorney/s to perform all necessary acts to give
effect to the provisions of this clause 9 including, but not limited to, signing any document on
the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1
The
Client must inspect the Goods on delivery and must within seven (7) days of
delivery notify the Seller in writing of any evident defect/damage, shortage in
quantity, or failure to comply with the description or quote. The Client must
notify any other alleged defect in the Goods as soon as reasonably possible
after any such defect becomes evident. Upon such notification the Client must
allow the Seller to inspect the Goods.
10.2 Under applicable
State, Territory and Commonwealth Law (including, without limitation the CCA),
certain statutory implied guarantees and warranties (including, without
limitation the statutory guarantees under the CCA) may be implied into these
terms and conditions (Non-Excluded Guarantees).
10.3 The Seller
acknowledges that nothing in these terms and conditions purports to modify or
exclude the Non-Excluded Guarantees.
10.4 Except as expressly
set out in these terms and conditions or in respect of the Non-Excluded
Guarantees, the Seller makes no warranties or other representations under these
terms and conditions including but not limited to the quality or suitability of
the Goods. The Seller’s liability in respect of these warranties is
limited to the fullest extent permitted by law.
10.6 If the Seller is
required to replace the Goods under this clause or the CCA, but is unable to do
so, the Seller may refund any money the Client has paid for the Goods.
10.7 If the Client is not a
consumer within the meaning of the CCA, the Seller’s liability for any
defect or damage in the Goods is:
(a) limited to the value
of any express warranty or warranty card provided to the Client by the Seller
at the Seller’s sole discretion;
(b) limited to any
warranty to which the Seller is entitled, if the Seller did not manufacture the
Goods;
(c) otherwise negated
absolutely.
10.8
Subject
to this clause 10, returns will only be
accepted provided that:
(a)
the
Client has complied with the provisions of clause 10.1; and
(b)
the
Seller has agreed that the Goods are defective; and
(c)
the
Goods are returned within a reasonable time at the Client’s cost (if that
cost is not significant); and
(d)
the
Goods are returned in as close a condition to that in which they were delivered
as is possible.
10.9
Notwithstanding
clauses 10.1 to 10.8 but subject to the
CCA, the Seller shall not be liable for any defect or damage which may be
caused or partly caused by or arise as a result of:
(a)
the
Client failing to properly maintain or store any Goods;
(b)
the
Client using the Goods for any purpose other than that for which they were
designed;
(c)
the
Client continuing the use of any Goods after any defect became apparent or
should have become apparent to a reasonably prudent operator or user;
(d)
the
Client failing to follow any instructions or guidelines provided by the Seller;
(e)
fair
wear and tear, any accident, or act of God.
10.10
The
Seller may in its absolute discretion accept non-defective Goods for return in
which case the Seller may require the Client to pay handling fees of up to ten percent
(10%) of the value of the returned Goods plus any freight costs.
10.11
Notwithstanding
anything contained in this clause if the Seller is required by a law to accept
a return then the Seller will only accept a return on the conditions imposed by
that law.
11.
Default and
Consequences of Default
11.1
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 the Seller’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any
judgment.
11.2
If
the Client owes the Seller any money the Client shall indemnify the Seller from
and against all costs and disbursements incurred by the Seller in recovering
the debt (including but not limited to internal administration fees, legal
costs on a solicitor and own client basis, the Seller’s collection agency
costs, and bank dishonour fees).
11.3
At
the Seller’s sole discretion, should any account become overdue from the
agreed payment due date then an amount of ten percent
(10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00))
shall be levied as a late payment fee which sum shall become immediately due
and payable.
11.4
Without
prejudice to any other remedies the Seller may have, if at any time the Client
is in breach of any obligation (including those relating to payment) under
these terms and conditions the Seller may suspend or terminate the supply of
Goods to the Client. The Seller will not be liable to the Client for any loss
or damage the Client suffers because the Seller has exercised its rights under
this clause.
11.5
Without
prejudice to the Seller’s other remedies at law the Seller shall be
entitled to cancel all or any part of any order of the Client which remains
unfulfilled and all amounts owing to the Seller shall, whether or not due for
payment, become immediately payable if:
(a)
any
money payable to the Seller becomes overdue, or in the Seller’s opinion
the Client will be unable to make a payment when it falls due;
(b)
the
Client 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 Client or any asset of the Client.
12.
Cancellation
12.1
The
Seller 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 Client. On giving such notice the Seller shall repay to
the Client any money paid by the Client for the Goods. The Seller shall not be
liable for any loss or damage whatsoever arising from such cancellation.
12.2
In
the event that the Client cancels delivery of Goods the Client shall be liable
for any and all loss incurred (whether direct or indirect) by the Seller as a
direct result of the cancellation (including, but not limited to, any loss of
profits).
12.3
Cancellation
of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once
production has commenced, or an order has been placed.
13.
Privacy Act 1988
13.1
The Client agrees
for the Seller to obtain from a credit reporting agency a credit report
containing personal credit information about the Client in relation to credit
provided by the Seller.
13.2
The Client agrees
that the Seller may exchange information about the Client with those credit
providers either named as trade referees by the Client or named in a consumer
credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the
Client; and/or
(c) to exchange information with other credit providers
as to the status of this credit account, where the Client is in default with
other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information
exchanged can include anything about the Client’s creditworthiness,
credit standing, credit history or credit capacity that credit providers are
allowed to exchange under the Privacy Act 1988.
13.3
The Client consents
to the Seller being given a consumer credit report to collect overdue payment
on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4
The Client agrees
that personal credit information provided may be used and retained by the
Seller for the following purposes (and for other purposes as shall be agreed
between the Client and Seller or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by the Seller, its agents or
distributors; and/or
(c) analysing, verifying and/or checking the
Client’s credit, payment and/or status in relation to the provision of
Goods; and/or
(d) processing of any payment instructions, direct debit
facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s
account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
13.5
The Seller may give
information about the Client to a credit reporting agency for the following
purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or
maintain a credit information file containing information about the Client.
13.6
The information
given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex,
address, previous addresses, date
of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application
for credit or commercial credit and the amount requested;
(c) advice that the Seller is a current credit provider
to the Client;
(d) advice of any overdue accounts, loan repayments,
and/or any outstanding monies owing which are overdue by more than sixty (60)
days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan
repayments and/or any outstanding monies are no longer overdue in respect of
any default that has been listed;
(f) information that, in the opinion of the Seller, the
Client has committed a serious credit infringement (that is, fraudulently or
shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one
hundred dollars ($100) or more, have been dishonoured more than once;
(h)
that credit provided to the Client by the Seller has
been paid or otherwise discharged.
14.
General
14.1
The
failure by the Seller to enforce any provision of these terms and conditions shall
not be treated as a waiver of that provision, nor shall it affect the
Seller’s right to subsequently enforce that provision. 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.
14.2
These terms and conditions and any contract to which they apply shall be
governed by the laws of the state in which the Seller has its
principal place of business, and are subject to the jurisdiction of the courts
in that state.
14.3 Subject to clause 10 the Seller shall be under no liability whatsoever to the Client for any
indirect and/or consequential loss and/or expense (including loss of profit)
suffered by the Client arising out of a breach by the Seller of these terms and
conditions (alternatively the Seller’s liability shall be limited to
damages which under no circumstances shall exceed the Price of the Goods).
14.4 The Client shall not be entitled to set off against, or deduct from the
Price, any sums owed or claimed to be owed to the Client by the Seller nor to
withhold payment of any invoice because part of that invoice is in dispute.
14.5
The Seller may license or sub-contract all or
any part of its rights and obligations without the Client’s consent.
14.6
The Client agrees that the Seller may amend
these terms and conditions at any time. If the Seller makes a change to these
terms and conditions, then that change will take effect from the date on which
the Seller notifies the Client of such change. The Client will be taken to have
accepted such changes if the Client makes a further request for the Seller to
provide Goods to the Client.
14.7
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.
14.8
The Client warrants that it has the power to
enter into this agreement and has obtained all necessary authorisations to
allow it to do so, it is not insolvent and that this agreement creates binding
and valid legal obligations on it.