DEFINITIONS

“JACI” means JACI Group Pty Ltd (ABN: 99 162 679 870) and its assignees. 

"Customer” means the party placing the Order with JACI either directly or through an agent of JACI.

"Order" means an offer by a Customer to purchase Products from JACI.

“Products” includes any goods, services and materials and any combination thereof.

“Due date” means, where goods are sold on credit, the date that payment for the Products (and all other amounts payable by the Customer) is due and payable within 30 days from date of invoice issued by JACI.

“Late Payment surcharge” means the charge on all amounts not paid by the Customer by the Due Date as described in clause 6.

“Restocking Fee” means the charge as described in clause 14 to cover the costs of handling goods returned (not being goods that are defective or damaged or that do not comply with the order or quote).

  1. Acceptance of order: JACI may accept any order in whole or in part. Shipping by JACI of Products for delivery pursuant to an order (whether by single or multiple delivery) shall be taken as acceptance to the extent shipped. Accepted orders (which includes forward orders and back orders) may not be varied or cancelled by the Customer without written approval from JACI and, subject to the provisions set out in clause 12, there is no right of return.

  2. Credit granting: JACI may accept an order and allow credit for part or all of its value or may accept an order and require pre-payment as a condition of delivery. Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted or is withdrawn, payment for all Products supplied is required before delivery. Where credit has been approved for the Customer, all invoices issued by JACI are due and payable by the Due date.

  3. Price: The price of the Products shall be as agreed between the parties, as published, or otherwise such amount as indicated on invoices provided by JACI to the Customer regarding Products ordered. Prior to acceptance of an order, JACI may change its published prices at any time without notice.

  4. Freight and handling charges: JACI may charge for freight and handling having regard to the mode of transport, distance and volume of Products supplied. The rates of charge are subject to change at any time without notice.

  5. Late payment surcharge: JACI may impose a Late Payment surcharge on any amounts not paid and undisputed by the Customer by the Due Date. The Late Payment surcharge is calculated at the rate of 1.5% of that amount per calendar month on any overdue amounts as from the Due Date and compounding monthly until paid.

  6. GST: JACI reserves the right to recover from the Customer any Goods and Services Tax (GST) payable in respect of supply of Products. Unless expressly included all amounts expressed or described in any agreement, price list or in invoices are GST exclusive.

  7. Delivery: Delivery of Products may not be refused by the Customer after an order has been accepted by JACI. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by JACI. The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable to accept delivery of the Products as arranged, then JACI shall be entitled to charge a reasonable fee for redelivery. Delivery of the Products to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement. The failure of JACI to deliver by a time specified by the Customer shall not entitle the Customer to treat that contract as breached or repudiated. JACI shall not be liable for any loss or damage or expense arising from failure by JACI to deliver the Products promptly or at all. Where only partial delivery of an order is made the Customer shall accept such delivery and be liable for payment thereof notwithstanding that other parts of the order may be related.

  8. Guarantee: The Signatory/ies hereby binds himself/themselves jointly and severally as surety and co-principal debtor/s in with the Customer in JACI’s favour of, its order or assigns, for payment of any amount which is now or in the future becomes due or owing by the Customer to JACI.

  9. Risk, title and the Personal Property Securities Act:

  1. Products supplied by JACI to the Customer will be at the Customer’s risk upon delivery to the Customer or into the Customer’s custody (whichever is the sooner).

  2. Ownership of each unit of the products will remain with JACI until all amounts owing by the Customer to JACI (including without limitation the purchase price of the products and other debts between the Customer and JACI have been paid in full.

  3. Until all amounts owing by the Customer have been paid in full the Customer may sell the products in the ordinary course of its business but only as trustee and agent of JACI. The Customer must not represent to any third party that it is acting for JACI, and JACI will not be bound by any contracts with third parties to which the Customer is party.

  4. The Customer must hold the proceeds it receives from any sale of the products as trustee and agent for JACI. All proceeds from the sale of the products must be placed in an ADI account separate from its own monies and the Customer must not allow any person to have control of, or grant a security interest over the proceeds or the accounts in which they are held. The Customer must make immediate payment to JACI from the accounts in which the proceeds are held of all amounts that may be owing by the Customer to JACI.

  5. Until all amounts owing by the Customer have been paid in full, the Customer may, subject to 9(c), take possession of the products and hold them as trustee and agent for JACI. The Customer must store the products in such a manner that they are readily distinguishable from the other goods held by the Customer and so they clearly show that they are the property of JACI.

  6. If the Customer becomes insolvent or does not comply with any terms of this Agreement in relation to the payment of any amount owing to JACI or otherwise, then:

    1. Immediately on JACI's request, the Customer must return any products acquired from JACI;

    2. JACI may enter upon the premise (or where the products are stored) and take possession of the products; and

    3. JACI may retain, sell or otherwise dispose of the products.

  7. If the Customer makes a payment to JACI at any time whether in connection with this Agreement or

otherwise JACI may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.

  1. If Chapter 4 of the Personal Property Securities Act 2009 (Cth) (“PPSA”) would otherwise apply to the enforcement of a security interest arising in connection with this Agreement the Customer agrees the following provisions of the PPSA will not apply to the enforcement of this Agreement:

  1. section 95 (notice of removal of accession), to the extent that it requires JACI to give a notice to the Customer;

  2. section 96 (when a person with an interest in the whole may retain an accession);

  3. subsection 121(4) (enforcement of liquid assets – notice to grantor); 

  4. section 125 (obligation to dispose of or retain collateral);

  5. section 130 (notice of disposal), to the extent that it requires JACI to give a notice to the Customer;

  6. paragraph 132(3)(d) (contents of statement of account after disposal);

  7. subsection 132(4) (statement of account if no disposal);

  8. section 135 (notice of retention);

  9. section 142 (redemption of collateral); and

  10. section 143 (reinstatement of security agreement).(a) Notices or documents required or permitted to be given to JACI or the Customer for the purposes of the PPSA must be given in accordance with the PPSA. (b) The Customer consents to JACI affecting a registration on the PPSA register (in any manner JACI considers appropriate) in relation to any security interest contemplated by this Agreement and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer waives the right to receive notice of a verification statement in relation to any registration on the register.

  1. Special ordered product: Direct costs may be added to any Product that has been specially ordered for a Customer (whether locally or from overseas) or which does not form part of the range in the current JACI published price list and shall not in any case be eligible for return.

  2. Credit card recovery of costs: A service fee may be charged to the Customer where payment is made by way of a credit card. The current service fee for Visa and MasterCard cards is 1.65% (including GST) Amex 2.8% (including GST) but this rate may be varied by JACI without prior notice. No other cards are accepted.

  3. Claims, repairs and returns: The Customer shall inspect the Products on delivery and shall notify JACI in writing of any apparent defect, shortage in quantity, damage or failure to comply with the order or quote. No claims for defective Products, shortage in quantity, damage or failure to comply with the order or the quote will be accepted unless JACI is notified in writing within five (5) business days of delivery.

The Customer agrees that it will not return any of the Products without first informing JACI and obtaining a Returns Authority Number (RAN) number issued by JACI. The issue of a RAN is not of itself any kind of admission or acceptance of a return.

No credit or replacement shall be given or repair undertaken unless and until Products so returned have been verified as being defective or otherwise valid for repair or return by JACI.

 

Customer shall be liable for a Restocking Fee on all goods accepted for return. The Restocking Fee shall not apply to goods returned for being defective, damaged or for failing to comply with the order or quote. The current Restocking Fee is 15% of the price of the Products returned.

All freight, handling and other charges in relation to returning goods (other than goods defective, damaged or not ordered) are the responsibility of the Customer.

  1. Set off: The Customer shall not be entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to the Customer by JACI.

  2. Disputed charges: If the Customer objects to any invoiced item, the Customer may withhold payment of the disputed amount but only if, on or before payment or the Due date for payment (whichever first occurs), notice in writing of the dispute is given to JACI, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount. JACI will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the due amount within 7 days of receiving notice and the basis of the decision. Invoiced amounts that are not objected to in writing within 30 days of the invoice date are deemed to be correctly charged.

  3. Credit policy and default: If the Customer defaults in payment of any invoice when due and payable, the

Customer shall indemnify JACI from and against all expenses costs and disbursements incurred by JACI in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees or commission charged to JACI by any mercantile agency. If the Customer fails to pay for the Products in accordance with invoices issued to the Customer, JACI may at its sole discretion do any one or more of the following:

  1. cancel any provision of credit to the customer;

  2. reverse any discounts allowed;

  3. require cash pre-payment for any further Products ordered;

  4. provide to a credit reporting agency details of the payment default;

  5. commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and

costs;

  1. decline to supply Products to the Customer (even if the order has been accepted and the goods are in transit);

  2. terminate any other agreement with the Customer; and

  3. exercise any other rights at law.

16. Recovery: Notwithstanding any other provision to the contrary, but subject to the PPSA, if any amount is not paid by the Customer by the Due date, JACI reserves the following rights in relation to the Products until all amounts owed by the Customer to JACI in respect of the Products and all other Products sold and other fees and charges are fully paid:

  1. legal and equitable ownership of the Products;

  2. to retake possession of the Products; and

  3. to keep or resell any of the Products repossessed.

The Customer hereby grants full leave and license without any liability to JACI and any person authorised by JACI on reasonable notice and subject to safety and security policies, to enter during business hours any premises where the Products may for the time being be placed or stored for the purpose of retaking possession of Products for which payment is overdue (subject to clause 14), if no loss, harm or damage is caused to the to the Products or to any other thing or item at those Premises.

  1. Returned cheques: An administration fee of $ 55.00 (including GST) plus all associated bank charges may be applied to any cheque payment returned unpaid by the bank for whatever reason.

  2. Disclaimer and limitation of liability:

a) To the extent permitted by law, JACI will not be liable to Customer or any other person under any

circumstances for loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by Customer, whether such liability arises directly or indirectly as a result of:

  1. any negligent act or omission or willful misconduct of JACI or its employees or agents;

  2. the supply, performance or use of any Products ore services; or

  3. any breach by JACI of its obligations under these Terms or relevant Sales Contract.

19. Warranty:

  1. Product are covered by manufacturers’ warranty. To the extent permitted by law, JACI’s entire responsibility with respect to warranties for the Products is to pass on to Customer the benefit of any such warranties. Subject to clause (c), software Products are not warranted by JACI under these Terms. Such software Products are warranted in accordance with the relevant licence agreements governing their use.

  2. To the extent permitted by law, the manufacturers’ warranties referred to in clause (a) are in substitution for all other terms, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and all such terms, conditions and warranties are expressly excluded.

  3. Certain legislation may imply warranties or conditions or impose obligations upon JACI that cannot be

excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which JACI is able to do so, its liability will be limited, at its option, to:

i.     in the case of products: the replacement of the products or resupply of equivalent products; repair of the products; payment of the cost of replacing the products or acquiring equivalent products; or the payment of ii) in the case of services: the supply of the services again; or the payment of the reasonable cost of having the services supplied again.

  1. JACI does not warrant that repair facilities or parts will be available in respect of any of the Products.

  1. Assignment: The Customer may not assign its rights or its obligations under this agreement nor subcontract any contract for the purchase of Products.

  2. Force majeure: JACI will have no liability to the Customer in relation to any loss, damage or expense caused by JACI’s failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock-out, war or the inability of JACI’s suppliers to supply necessary materials or any other matter beyond JACI’s control.

  3. Privacy information: JACI may give information about the Customer, its guarantors, directors or proprietors to a credit reporting agency for the following purposes:

  1. to obtain a consumer credit report about the Customer, its guarantors, directors or proprietors;

  2. allow the credit reporting agency to create or maintain a credit information file containing information about the

Customer, its guarantors, directors or proprietors; and

  1. to obtain commercial credit information about the Customer, its guarantors, directors or proprietors from a credit reporting agency.

  1. Waiver of terms of agreement: The failure by either party to exercise, or delay in exercising, any right, power or privilege available to it under this agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.

  2. Proper law: The agreement is governed by and will be construed in accordance with the laws of the State of New South Wales and the parties agree to submit to the exclusive jurisdiction of the courts of the State of New South Wales.

  3. Entire agreement: This document represents the entire agreement between the parties and may not be amended except in writing signed by each of the parties and the Customer acknowledges that in entering this agreement it has not relied on any oral or written representation made by any person on behalf of JACI.

  4. General: Each party may serve any notice or court document on the other party and on any guarantors by forwarding it by ordinary pre-paid post, in the case of the Customer, to the address of the Customer last known to JACI, in the case of JACI, to the address of JACI last known to the Customer and, in the case of any guarantor, to the address of the guarantor last known to JACI.

If any term of this agreement shall be invalid, void, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired.

JACI may assign or licence or subcontract all or any parts of its rights and obligations hereunder without the agreement or consent of the Customer or any guarantor.

Except as otherwise agreed in writing, these terms and conditions shall apply to all sales to Customers by JACI. To the extent that these terms and conditions may be varied over time by JACI then the conditions current at the time of acceptance of any specific order or part of an order shall apply.

In the event that the Customer sells its business or any part thereof, the Customer shall be responsible to notify JACI in writing of such sale to enable the Customer’s account to be closed. To the extent that the Customer fails to so notify, or cannot so prove notification, then the Customer and any guarantors shall be jointly and severally liable to JACI for the payment of Products subsequently sold to a third party on the Customer’s account as if the Customer had ordered the Products itself.

© 2018 by JACI Group

www.jaci.com.au