1.1 In these Terms:
ACL means the Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth) and its associated regulations as amended;
Agreement means any agreement for the supply of Goods by Verbatim
Compliance Document means a Supplier Declaration of Conformity or SDoC as required for the sale of certain electrical products in accordance with the relevant legislation and regulations.
Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement;
Customer means the person, jointly or severally if more than one, acquiring Goods or Service from Verbatim;
Delivery means the delivery of the Goods in accordance with these Terms or the Agreement.
Goods means any goods supplied by Verbatim to the Customer;
GST means any goods and services or value added tax, including GST, within the meaning of A New Tax System (Goods and Services Tax) Act 1999 and its associated regulations as amended;
Intellectual Property means all copyright, patents, trademarks, names, formulae, specifications, confidential information and all modifications, improvements and enhancements (whether registrable or not) owned or by or licensed to Verbatim in respect of the Goods.
Offer means a written order or a document that may be or construed as a purchase order, from the Customer to Verbatim in relation to a Quote.
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
Price means the price for Goods stated in Verbatim’s tender, quote, price schedule or letter attached to these terms or provided to the Customer, and is subject to clause 4;
Quote or Quotation means formal written quotation or tender for the supply of Goods or an order form or price list provided to a Customer;
Privacy Act means the Privacy Act 1988 (Cth);
Project means a long-term construction or building project for the Goods are ordered by Verbatim months ahead of delivery requirements of the Customer.
Terms means these Terms and Conditions of Sale as varied or amended from time to time;
Verbatim means Verbatim Australia Pty Ltd ACN 005 706 374 of Unit 6/450 Princes Hwy Noble Park, Victoria 3174 and includes its contractors, successors and assigns; and
Website means any webpage conducted by Verbatim from time to time.
2. BASIS OF AGREEMENT
2.1 The Customer acknowledges and agrees that these Terms must be read in conjunction with the Terms and Conditions found on our Website from time to time and apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any Quote provided by Verbatim to the Customer for the proposed supply of Goods is:
(a) only an invitation to treat;
(b) valid for 7 days unless otherwise agreed in writing; and
(c) only valid if in writing.
2.3 The Quote may include additional terms in accordance with Verbatim’s Quote, with such terms taking precedence over these Terms to the extent that they are inconsistent with these Terms.
2.4 An Offer is accepted by Verbatim when Verbatim accepts, in writing or by electronic means, an offer from the Customer or provides the Customer with the Goods.
2.5 Verbatim has absolute discretion to refuse or accept any Offer.
2.6 Verbatim may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will be shown our website at www.verbatim.com.au/termsandconditions and will apply to orders placed after the notice date.
3.1 Unless otherwise agreed by Verbatim in writing, payment of the Price must be made in full on delivery of the Goods.
3.2 Payment by cheque or electronic funds transfer is not deemed to have been made until the full Price has been received, as cleared funds, in Verbatim’s bank account.
3.3 If credit is agreed in writing by Verbatim, payment must be made within 30 days of the date of statement of current invoice.
3.4 Credit terms may be revoked or amended at Verbatim's sole discretion immediately upon giving the Customer written notice.
3.5 Verbatim will provide a tax invoice for GST purposes.
3.6 Any other payment terms must be agreed in writing and signed by Verbatim.
3.7 The time for payment is of the essence.
4.1 Unless otherwise stated, prices for the supply of Goods includes GST and any other duties, taxes or imposts imposed in relation to the Goods in Australia.
4.2 Unless otherwise agreed by Verbatim in writing, the Goods are CIF the Customer’s location in and Australian capital city otherwise the Customer may be required to Customer must pay costs associated with the Delivery from of the Goods from Verbatim’s nominated collection point.
4.3 If the Customer requests a variation to the Goods or where there is otherwise any change in the costs incurred by Verbatim in relation to the Goods, Verbatim may vary the Price to take into account any such change, by notifying the Customer.
4.4 Any Prices (including recommended retail prices) listed on the Website or contained in any Verbatim price list or any other document are Quotation only, and are not binding on Verbatim.
4.5 Any Goods that Verbatim may be required to order from overseas suppliers as a result of the Customer making an Offer will be subject to currency exchange exposure risk or fluctuations in material costs or freight costs, and the Customer agrees that Verbatim may alter the Price if necessary.
5. PAYMENT DEFAULT
5.1 If the Customer defaults in payment by the due date of any amount payable to Verbatim, then all money which would become payable by the Customer to Verbatim at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Verbatim may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic.) plus 2% per annum for the period commencing on the due date and continuing until the date that of payment in full is received by Verbatim;
(b) charge the Customer for, and the Customer must indemnify and hold Verbatim harmless against, all costs and expenses (including without limitation, all bank charges and legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Goods;
(c) cease or suspend supply of any further Goods to the Customer;
(d) by written notice to the Customer, terminate any uncompleted Agreement with the Customer; and
(e) retain any part payment of the Price or deposit paid by the Customer and apply it against any costs and expenses incurred by Verbatim as a result of the default.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at Verbatim’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. PASSING OF PROPERTY
6.1 Until Verbatim receives full payment of the Price in cleared funds for all Goods sold to the Customer, as well as all other amounts owing on any account to Verbatim by the Customer:
(a) title and property in all Goods remain vested in Verbatim;
(b) the Customer must hold the Goods as fiduciary bailee and agent for Verbatim and do not pass to the Customer;
(c) if applicable, the Customer must to hold the proceeds of sale of the Goods on trust for Verbatim, in a separate account with a bank to whom the Customer has not given security, however, failure to do so will not affect the Customer’s obligations as a trustee;
(d) if appropriate, the Customer must keep the Goods separate from its goods and maintain Verbatim's labelling and packaging in proper and marketable condition.
(e) the Customer must maintain records of Goods owned by Verbatim, the organisation to whom the Goods are sold and details of payments made for the Goods; and
(f) in addition to its rights under the PPSA, Verbatim may without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Verbatim, and for this purpose the Customer irrevocably licenses Verbatim to enter such premises and also indemnifies Verbatim from and against all costs, claims, demands or actions by any party arising from such action.
7. PERSONAL PROPERTY SECURITIES ACT
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) terms used in this clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and Verbatim has a Purchase Money Security Interest in all present and future Goods supplied by Verbatim to the Customer and the proceeds of those Goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by Verbatim on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the Goods when the Goods are collected or dispatched from Verbatim's premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 Verbatim and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Verbatim will apply only to the extent that they are mandatory or Verbatim agrees to their application in writing; and
(b) where Verbatim has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Customer must immediately upon Verbatim's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by Verbatim to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Verbatim may at any time require.
7.8 Verbatim may allocate amounts received from the Customer in any manner Verbatim determines, including in any manner required to preserve any Purchase Money Security Interest it has in Goods.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree that these Terms and any information pertaining to the sale of Goods and details of the Goods shall be kept confidential at all times. The parties must not disclose any information pertaining to these Terms or the sale of the Goods, except as otherwise required by law or that is already in the public domain.
8. PERFORMANCE OF AGREEMENT
8.1 Any period or date stated by Verbatim for Delivery is an estimate only and not a contractual commitment.
8.2 Verbatim will use its reasonable endeavours to meet any estimated dates for Delivery but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
8.3 If Verbatim cannot complete Delivery by any estimated date, it will complete the services within a reasonable time.
9. RISK AND INSURANCE
9.1 Risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately in Delivery.
9.2 The Goods are sold to the Customer on the basis that the Customer has obtained all necessary licences or permits under all relevant laws and regulations in relation to the Goods.
9.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods, unless recoverable from Verbatim on the failure of any statutory guarantee under the ACL.
10.1 Unless otherwise agreed by Verbatim in writing, the Goods are CIF the Customer’s location in and Australian capital city otherwise the Customer may be required to Customer must pay costs associated with the Delivery from of the Goods from Verbatim’s nominated collection point.
10.2 The costs associated with Delivery of Goods are subject to change.
10.3 In the event that one or more Goods ordered by a Customer is delayed, Verbatim may arrange for a partial delivery of the Customers order. The Customer agrees to accept partial delivery of Goods however the Customer has no right to request a partial delivery. All partial deliveries will be invoiced separately and are deemed to constitute a separate Agreement. Any failure by Verbatim to deliver any separate Agreement does not entitle the Customer to repudiate the entire order.
10.4 The Customer indemnifies Verbatim against any loss or damage suffered by Verbatim, its subcontractors or employees as a result of Delivery, except where the Customer is a Consumer and Verbatim has not used the necessary level of due care and skill.
10.5 If Delivery is attempted and is unable to be completed the Customer is deemed to have taken Delivery of the Goods. The Customer is liable for storage charges payable monthly on demand.
10.6 If agreed that the Customer, or its carriers, will collect the Goods:
(a) the Customer or its carrier must collect the Goods within 7 days of being advised they are ready;
(b) the Goods must be collected from the location specified by Verbatim; and
(c) if the Customer or its carrier does not collect the Goods within this time, the Customer is deemed to have taken delivery of the Goods and is liable for storage charges payable monthly on demand.
10.7 Notwithstanding anything else in these Terms, if the Goods are being ordered form overseas suppliers by Verbatim to fulfill Orders for a Customer’s Project, then it is acknowledged by the Customer that quoted delivery lead times are only an estimate and delays by shipping and third parties are beyond the control of Verbatim for which Verbatim will not be held liable.
11. WARRANTY AND LIABILITY
11.1 Except as otherwise required by law or as specifically stated in these Terms or any express warranty provided in relation to the Goods, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure.
11.2 If the Customer is a Consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Verbatim for failure of a statutory guarantee under the ACL.
11.3 To the extent permitted by law, any warranty provided by Verbatim in relation to the Goods will not apply where the Goods have been subject to an accident, negligent use, tampering, improper handling, use, operations or storage or due to any other causes outside of Verbatim’s reasonable control.
11.4 If the Customer on-supplies the Goods to a Consumer, and:
(a) the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Verbatim's liability to the Customer;
(b) the Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Verbatim's liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods by the Customer or any third party.
11.5 If clauses 11.2 and 11.4 do not apply, then other than as stated in these Terms or any written warranty statement Verbatim is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods by the Customer or any third party.
11.6 Except as otherwise required by law, Verbatim; s maximum liability to the Customer is the refund of the Price of the Goods or the replacement of the Goods, at Verbatim’s sole discretion.
11.7 Verbatim is not liable for any indirect or consequential losses, damage or expense suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, business or goodwill or any other party except to the extent of any liability imposed by the ACL.
11.8 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Verbatim in relation to the Goods or their use or application; and
(b) it has not made known, either expressly or by implication, to Verbatim any purpose for which it requires the Goods and it has the sole responsibility of satisfying itself that the Goods are suitable for the use of the Customer.
11.9 Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods which cannot be excluded, restricted or modified.
12. GENERAL WARRANTIES
12.1 All Goods sold have the benefit of the warranty contained in or on the packaging of the Goods. (Warranty)
12.2 The Warranty does not apply to Goods rendered defective as a result of accident, fair wear and tear, negligent use, tampering, improper handling, use, operation, or storage, or due to any other causes outside of Verbatim’s control.
12.3 In order to make a claim under the Warranty, a person must:
(a) give Verbatim written details of any defect in the Goods together with documentary proof of the date of purchase and date of installation of end user of the Goods within 30 days of identifying the defect;
(b) return the defective Goods to Verbatim or allow Verbatim or its employees or agents to inspect the Goods; and
(c) provide any information requested by Verbatim in relation to the Goods or installation of the Goods.
12.4 Verbatim warrants that, if applicable, its Goods are supplied with Compliance Documents confirming that the Goods meet the relevant Australian and /or New Zealand regulatory standards.
12.5 Notwithstanding clause 12.4, the Customer acknowledges and agrees that if the regulatory requirements for any Goods vary from the Australian and /or New Zealand regulatory standards then the Customer must inform Verbatim as soon as possible that additional testing and/or certification may be required.
13. RETURNS AND EXCHANGES
13.1 Except as otherwise required by law and subject to clauses 13.2 and 13.3, Verbatim will not be liable for any shortages, damage, or non-compliance with the specifications of the Goods in the Agreement unless the Customer notifies Verbatim with full details including the invoice number and date, within 3 days of Delivery, otherwise the Customer is deemed to have accepted the goods.
13.2 When any shortages, claim for damaged Goods or non-compliance with the Agreement specifications is accepted by Verbatim, Verbatim may, subject to the requirements of the ACL, replace the Goods or refund the Price of the Goods affected to the Customer.
13.3 Except as otherwise required by law, Verbatim will not under any circumstances accept Goods for return that:
(a) have been specifically produced, imported or acquired to satisfy these Terms;
(b) are discontinued or no longer stocked by Verbatim;
(c) have been altered in any way;
(d) have been used or stored improperly; or
(e) are not in their original condition and packaging (if applicable).
13.4 The Customer must pay any postage, delivery or freight changes associated with the return of Goods.
13.5 If the Customer is a Consumer, nothing in this clause 13 limits any remedy available for a failure of the consumer guarantees under the ACL.
14. CANCELLATION AND VARIATION
14.1 If Verbatim is unable deliver or supply the Goods, then it may cancel the any Agreement or the order for Goods by notice in writing to the Customer, without liability.
14.2 No purported cancellation or suspension of an Agreement or order for the Goods by the Customer is binding on Verbatim after that order has been accepted by Verbatim.
14.3 In the event that Verbatim accepts the Customer’s request to cancel the supply of the Goods, the Customer will be liable to Verbatim for the costs of the Goods to that extent that they have been provided.
15. FORCE MAJEURE
15.1 Verbatim is not liable in any way howsoever arising under these Terms or any Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts or threats of terrorism or war. If an event of force majeure occurs, Verbatim may suspend or terminate these Terms or any Agreement by written notice to the Customer.
16.1 Details on how Verbatim collects personal information can be found on our website at www.verbatim.com.au/privacypolcy.
17.1 The law of Victoria, Australia from time to time govern these Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia and of the courts entitled to hear appeals from those Courts.
17.2 Verbatim's failure to enforce any of these Terms shall not be construed as a waiver of any of Verbatim’s rights.
17.3 If any clause of these Terms is unenforceable it shall be read down to be enforceable or, if it cannot be read down, the term shall be severed from these Terms, without affecting the enforceability of the remaining terms.
17.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.