1. DEFINITIONS
1.1 “Strongcast” means Strongcast Pty Ltd, its successors and assigns or any
person acting on behalf of and with the authority of Strongcast Pty Ltd.
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 Strongcast 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 Strongcast and the Client in accordance with clause 5 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 Strongcast’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Strongcast.
2.3 The Client acknowledges and accepts that Strongcast at their discretion, reserves
the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on Strongcast by their suppliers. Strongcast shall not be liable to the Client for any loss or damage the Client suffers due to Strongcast exercising its rights under this clause.
2.4 The Client acknowledges that any advice or recommendations by Strongcast are provided
on the basis of Strongcast’s industry knowledge and experience only and shall not be deemed as specialist advice
2.5 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Strongcast’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. CHANGE IN CONTROL
3.1 The Client shall give Strongcast 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 Strongcast as a result of the Client’s failure to comply with this clause.
4. ELECTRONIC TRANSACTIONS ACT 2000
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. PRICE AND PAYMENT
5.1 At Strongcast’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Strongcast to the Client; or
(b) Strongcast’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Strongcast reserves the right to change the Price if a variation to Strongcast’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen
circumstances such as overseas transactions that may increase as a consequence of variations
in foreign currency rates of exchange and/or international freight and insurance charges, requests from the Client in quantity amounts to be supplied, handling fees or as a result of any increase
to Strongcast in the cost of materials and labour) will be charged for on the basis of Strongcast’s quotation and will be shown as variations on the invoice
5.3 At Strongcast’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Strongcast, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with Strongcast’s payment schedule;
(c) 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) thirty (30) days following the date of the invoice;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Strongcast.
5.5 Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half (2.5%) percent of the Price), or by any other method as agreed to between the Client and Strongcast.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Strongcast an amount equal to any GST Strongcast must pay for
any supply by Strongcast 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.
6. DELIVERY OF GOODS
6.1 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 Strongcast’s address; or
(b) Strongcast (or Strongcast’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 At Strongcast’s sole discretion the cost of delivery is in addition to the Price.
6.3 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 Strongcast shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 Strongcast may deliver the Goods in separate instalments. Each separate
instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by Strongcast to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Strongcast will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7. ONLINE ORDERING
7.1 The Client acknowledges and agrees that:
(a) Strongcast do not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such Strongcast cannot warrant against delays or errors in transmitting data between the Client and Strongcast including orders, and you agree that to the maximum extent permitted by law, Strongcast will not
be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
7.2 Strongcast reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of Strongcast Services, or violated these terms and conditions.
8. RISK
8.1 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.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Strongcast is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Strongcast is sufficient evidence of Strongcast’s rights to receive the insurance proceeds without the need for any person dealing with Strongcast to make further enquiries.
8.3 If the Client requests Strongcast to leave Goods outside Strongcast’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.
8.4 Strongcast will make every effort to match batches of Goods supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur between batches of Goods or sale samples and the final Goods supplied.
9. TITLE
9.1 Strongcast and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Strongcast all amounts owing to Strongcast; and
(b) the Client has met all of its other obligations to Strongcast.
9.2 Receipt by Strongcast 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.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Strongcast on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Strongcast and must pay to Strongcast 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 Strongcast and must pay or deliver the proceeds to Strongcast 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 Strongcast and must sell, dispose of or return the resulting product to Strongcast
as it so directs.
(e) the Client irrevocably authorises Strongcast to enter any premises where Strongcast believes the Goods are kept and recover possession of the Goods.
(f) Strongcast 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 Strongcast. (h) Strongcast may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 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 Strongcast to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Strongcast
may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Strongcast 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 Strongcast;
(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 Strongcast;
(e) immediately advise Strongcast 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.
10.4 Strongcast 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.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Strongcast, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Strongcast under clauses 10.3 to 10.5.
10.9 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.
11. SECURITY AND CHARGE
11.1 In consideration of Strongcast 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).
11.2 The Client indemnifies Strongcast from and against all Strongcast’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Strongcast’s rights under this clause.
11.3 The Client irrevocably appoints Strongcast and each director of Strongcast as
the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within sixty (60) days of delivery notify Strongcast 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 Strongcast to inspect
the Goods.
12.2 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).
12.3 Strongcast acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
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©Copyright – Strongcast Pty Ltd
a. 17/1440 New Cleveland Rd, Chandler 4155 e. sales@strongcast.com.au
a. 99152334453
Terms and Conditions
12.4 Except as expressly set out in these terms and conditions or in respect of the Non- Excluded Guarantees, Strongcast makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Strongcast’s liability in respect of these warranties is limited to the fullest
extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Strongcast’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Strongcast is required to replace the Goods under this clause or the CCA, but is unable to do so, Strongcast may refund any money the Client has paid for the Goods. 12.7 If the Client is not a consumer within the meaning of the CCA, Strongcast’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 Strongcast at Strongcast’s sole discretion;
b) limited to any warranty to which Strongcast is entitled, if Strongcast did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Strongcast 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.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Strongcast 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 (including but not limited to misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation);
(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 Strongcast;
(e) fair wear and tear, any accident, or act of God.
12.10 Strongcast may in its absolute discretion accept non-defective Goods for return
in which case Strongcast may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
12.11 Notwithstanding anything contained in this clause if Strongcast is required by a law to accept a return then Strongcast will only accept a return on the conditions imposed by that law.
13. INTELLECTUAL PROPERTY
13.1 Where Strongcast has designed, drawn or developed Goods for the Client, then
the copyright in any designs and drawings and documents shall remain the property of Strongcast.
13.2 The Client warrants that all designs, specifications or instructions given to Strongcast will not cause Strongcast to infringe any patent, registered design or trademark
in the execution of the Client’s order and the Client agrees to indemnify Strongcast against any action taken by a third party against Strongcast in respect of any such infringement.
13.3 Strongcast may grant the Client a non-transferable licence to use the Intellectual Property referred to in clause 13.1 in relation solely to the operation of the Client’s business however, the
Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to Strongcast
unless express approval is given in advance by Strongcast. Such licence
shall terminate on default of payment or any other terms of this agreement by the Client.
13.4 The Client further agrees that they shall not without Strongcast’s prior written consent:
(a) allow any third party to have access to any designs, drawings or developed Goods; or.
(b) alter, modify, reverse engineer the software associated with the development of the Goods or tamper with any trademark marked on any finished Goods; or
(c) combine the software with any other software.
13.5 The Client agrees that Strongcast may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Strongcast has created for the Client.
14. DEFAULT AND CONSEQUENCES OF DEFAULT
14.1 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 Strongcast’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Strongcast any money the Client shall indemnify Strongcast
from and against all costs and disbursements incurred by Strongcast in
recovering the debt (including
but not limited to internal administration fees, legal costs on a solicitor and own client basis, Strongcast’s contract default fees, and bank dishonour fees).
14.3 Without prejudice to any other remedies Strongcast may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Strongcast may suspend or terminate the supply of Goods to the Client. Strongcast will not be liable to the Client for any loss or
damage the Client suffers because Strongcast has exercised its rights under this clause.
14.4 Without prejudice to Strongcast’s other remedies at law Strongcast shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Strongcast shall, whether or not due for payment,
become immediately payable if:
(a) any money payable to Strongcast becomes overdue, or in Strongcast’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.
15. CANCELLATION
15.1 Strongcast 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 Strongcast shall repay to
the Client any money paid by the Client for the Goods. Strongcast shall not be
liable for any loss or damage whatsoever arising from such cancellation.
15.2 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 Strongcast as a direct
result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for Goods made to the Client’s specifications, or for nonstocklist items and/or indent orders, will definitely not be accepted once production
has commenced, or an order has been placed.
16. PRIVACY ACT 1988
16.1 The Client agrees for Strongcast to obtain from a credit reporting agency a
credit report containing personal credit information about the Client in relation to
credit provided by Strongcast.
16.2 The Client agrees that Strongcast 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.
16.3 The Client consents to Strongcast being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 16.4 The Client agrees that personal credit information provided may be used and retained by Strongcast for the following purposes (and for other purposes as shall be agreed between the Client and Strongcast or required by law from time to time): (a) the provision of Goods; and/or
(b) the marketing of Goods by Strongcast, 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.
16.5 Strongcast 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.
16.6 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 Strongcast 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 Strongcast, 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 Strongcast has been paid or otherwise discharged.
17. GENERAL
17.1 The failure by Strongcast to enforce any provision of these terms and
conditions shall not be treated as a waiver of that provision, nor shall it affect Strongcast’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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which Strongcast has its principal
place of business, and are subject to the jurisdiction of the courts in that
state.
17.3 Subject to clause 12 Strongcast 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 Strongcast of these terms
and conditions (alternatively Strongcast’s liability shall be limited to damages
which under no circumstances shall exceed the Price of the Goods).
17.4 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 Strongcast nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 Strongcast may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.6 The Client agrees that Strongcast may amend these terms and conditions at
any time. If Strongcast makes a change to these terms and conditions, then that change will take effect from the date on which Strongcast notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Strongcast to provide Goods to the Client.
17.7 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.
17.8 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.