1 These terms and conditions apply to all transactions between the supplier and the customer notwithstanding any statement to the contrary which may be contained in the customer’s order.
2 These terms and conditions of sale, may be varied by the supplier at any time by notice in writing to the customer.
3 Quotations provided by the supplier are to be construed as an invitation to treat and not as an offer to sell the goods the subject of the quotation by the supplier.
4 An agreement for sale of the goods arises when an order for the goods is placed by the customer and; (a) That order is accepted by the supplier in writing; or (b) The order is otherwise satisfied or performed in whole or in part by the supplier: or (c) The order is completed on www.industrykitchens.com.au
5 (a) All prices quoted and any other charges applicable will be exclusive of GST, insurance and delivery charges. GST will be payable by the customer upon supply of Goods. “GST” means GST within the meaning of A New Tax System (Goods & Services Tax) Act 1999 (as amended). (b) Price quotes are subject to variation without notice.
6 Where the Customer withdraws or cancels any order following acceptance by the supplier the customer will pay to the supplier as a result of such withdrawal by way of liquidated damages an amount equivalent to twenty-five percent (25%) of the agreed price of the goods. ORDERS FOR NON-STOCK ITEMS MAY NOT BE CANCELLED OR RETURNED UNDER ANY CIRCUMSTANCES AT ANY STAGE.
7 Delivery of the goods shall be effected subject to the state in which the order is placed. Such delivery shall only be made to ground floor or kerbside goods receiving areas unless otherwise agreed by writing.
8 Any time given for delivery of goods is an estimate only. The supplier shall not be liable for any loss or damage whatsoever by reason of any delays in delivery of the goods and the customer shall not be relieved of any obligation to accept or pay for the goods by reason of such delay. If the supplier, in its sole and absolute discretion, determines that it is or may be unable to complete its obligations within a reasonable time or at all, the contract may be terminated by the supplier. In the event of termination, the customer shall have no claim against the supplier for any damage, loss, cost or expense whatsoever.
9 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the customer’s purchase order must be submitted by the customer to the supplier in writing within two (2) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the (a) customer’s purchase order: or (b) online transaction at www.industrykitchens.com.au.
9.1 All goods will be delivered curbside with a local agent. If site is unattended, goods will be left in a suitable located on premises such as back/front door.
10 (a) The goods shall be subject to a materials and labour warranty (excluding consumables) for 12 months following delivery, in any case where the goods are found to be defective in materials, manufacture or workmanship. To be eligible for manufacturer warranties, manufacturers may ask that the product is registered within a certain time-frame before or after delivery. The responsibility for registering a product for warranty is exclusively that of the customer. Manufacturer warranties may be greater than 12 months. This warranty applies only for the benefit of the customer and is void if installation or operation is not in accordance with the manufacturer's instructions and recommendations. Furthermore, all warranty work must be conducted by the manufacturers' staff or their authorised service agents. All warranty calls are to be placed and authorised via the manufacturers' branch offices.
(b) All warranty work will be undertaken in normal working hours from Monday – Friday 8am – 4pm. Penalty rates for after-hours service apply and when charged, the excess between normal hour labour rates and penalty rates will be the customer’s responsibility. Equipment such as Vitamix blenders, Vollrath, Server, Roband, Robinox, Sammic, Woodson, Birko, Dynamic, Forje, Hatco, Nemco, Roller Grill, Rubbermaid, San Jamar, Woodson Starline, Waring, Unox SpidoCook, Unox Linemiss, Mazzer, Santos, Silver King, Vito, Yellow, Merrychef and Antunes products and other small equipment are classed as 'carry in' items. These items are to be returned to Industry Kitchens/Authorised Service Agent workshop/Importer for repair as required. Transport/ freight costs to and from the customer for ‘carry in’ items are to be covered by the customer. If the customer requests on-site service (an option sometimes available to the customer) the customer will be charged callout and travelling costs; the labour for warranty repair time on site will not be covered by Industry Kitchens.
(c) Service work carries a 30 day warranty on workmanship. Penalty rates apply for service work conducted outside of normal working hours Monday-Friday 8am – 4pm.
(d) Coffee & espresso machines & equipment are subject to 12 months parts only.
11 Save and except for the express warranty set out above, and to the maximum extent permitted by law, all conditions and warranties which may at any time be implied by the Common Law, the Trade Practices Act, the Fair Trading Act, The Goods Act or any other State or Federal Act are excluded. To the extent that these cannot be excluded and where the law permits, the supplier’s liability in respect of any such condition or warranty shall be limited at the option of the supplier to the repair or replacement of the goods or the supply of equivalent goods or the payment of the costs of replacing or repairing the goods or having them replaced or repaired.
12 Notwithstanding Clause 14, title to the goods shall remain with the supplier until such time as the supplier has received payment of the purchase price of the goods and the purchase price of any other goods or services previously or subsequently supplied by the supplier to the customer whereupon such title shall pass to the customer.
13 Until such time as title of the goods passes to the customer, the customer shall hold the goods as the fiduciary agent of the supplier and shall remain liable to account to the supplier for the goods.
14 The customer must assume full risk of loss or damage to the goods immediately upon delivery. Pending payment in full for the goods, the customer must not supply any of the goods to any person outside of its ordinary or usual course of business, must not allow any person to have or acquire any security interest in the goods, and must insure the goods for the full insurable or replacement value (whichever is the higher), with an insurer licensed or authorised to conduct the business of insurance in the place where the customer carries on business.
15 The invoiced amount to the goods is to be paid by the customer no later than 7 days following the invoice is first issued (“the due date”). Where the customer fails to effect payment within this period, the supplier may at its discretion and without attracting any liability to the customer withhold delivery of all other goods for which orders have been placed by the customer and accepted by the supplier.
16 Where payment is not made on the due date, interest on the amount outstanding shall be payable at the greater of the rate of one percent above the supplier’s overdraft rate from time to time, calculated from the due date of the payment until payment is made in full.
17 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by the supplier for enforcement of obligations and recovery of monies due from the Customer to the supplier.
18 These terms and conditions shall at all times be governed, construed and interpreted according to the law of the State of Victoria and the customer hereby irrevocably submits to the jurisdiction to the courts of that State and all courts of appeal therefrom.
19 The customer authorises the supplier to:-
(a) obtain credit reports from credit reporting agencies and other credit providers concerning the customer’s creditworthiness, credit standing, credit history and credit capacity for the purpose of assessing an application by the customer for credit and the customer’s creditworthiness.
(b) to disclose reports and information to other credit providers about the customer’s creditworthiness, credit standing, credit history and credit capacity for the purpose of assessing an application by the customer for credit and the customer’s creditworthiness.
20 The customer as beneficial owner and/or registered proprietor now charges in favour of Industry Kitchens all of the customer’s estate and interest in any real property (including but not limited to any applicable land owned by the customer named or described as the customer’s Street Address in the Credit Application if applicable) (“Land”) to secure payment of accounts rendered by the supplier to the customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by the supplier and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat. The customer further agrees to execute a mortgage or mortgagees in registerable form at the request of the supplier. If upon request, the mortgage(s) are not executed and returned within fourteen (14) days, then the customer authorises any duly authorised officer of the supplier to sign as attorney. A statement of certificate signed by a duly authorised officer of the supplier as the goods supplied to any indebtedness of the customer should be prima facie evidence of the role.
21 Goods returned for credit may incur a restocking fee equal to the percentage of the value of the items returned as indicated on the invoice. Authorisation for return of goods must be sought before the goods are returned.
22 The customer grants Industry Kitchens a Security Interest in the goods supplied as Commercial Property, more particularly described as Other Goods and their Proceeds to secure the obligation of the customer to pay the purchase price of the goods and any other obligations of the customer to Industry Kitchens under this contract (together the “Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the customer’s present and after acquired property, of which the goods form part, to the extent required to secured the Indebtedness.
23 As and when required by Industry Kitchens the customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Industry Kitchens to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Industry Kitchens’ Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 2009 (“PPSA”).
24 The customer shall not change its name without first notifying Industry Kitchens of the new name not less than 7 days before the change takes effect.
25 The customer warrants that the goods are not purchased for personal, domestic or household purposes.
26 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the customer on more than one invoice/order, any payments received from the customer shall be deemed to be made by the customer and applied by Industry Kitchens in the following order:
(a) To any obligation owed by the customer to Industry Kitchens which is unsecured, in the order in which the obligations were incurred.
(b) To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred.
(c) To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
27 Until the Customer has paid all money owing to Industry Kitchens the customer shall at all times ensure that:
(a) Goods supplied by Industry Kitchens, while in the customer’s possession, can be readily identified and distinguished, and/or
(b) All Proceeds (in whatever form) that the customer received from the sale of any of the goods are readily identifiable and traceable.
28 Where the goods are purchased by the customer and held as Inventory, nothing in this Contract shall prevent the customer from selling or leasing and delivering the goods in the ordinary course of the customer’s business. Otherwise until the customer has paid all money owing to Industry Kitchens the customer shall not sell or grant a Security Interest in the goods without Industry Kitchens’s written consent.
29 The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on Industry Kitchens. The customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Industry Kitchens in respect of the Security Interest created by these terms and conditions.
30 For the purpose of clauses 22 to 30, all words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA.
Keenan Enterprises Pty Ltd t/a Industry Kitchens (ABN 34697690875)