These are the entire Terms and Conditions of Sale of all goods, merchandise and services (“the goods”) supplied by in Asia Pacific by the Arcadia Group of Companies, including Arcadia Corporation Pty Ltd (ABN 52 075 770 277) (trading as EIZO Oceania) and Arcadia Certified Imaging (trading as EIZO South East Asia) and any associated, related and subsidiary Companies, successors and assigns (all of which are referred to as “ARC”) to any person, firm or company placing an order with ARC for the purchase of the goods (“the Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of ARC and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
1.1 All orders placed with ARC that are accepted are accepted subject to these Terms and Conditions.
1.2 ARC may at any time, and from time to time alter these Terms and Conditions of Sale and such altered Terms and Conditions of Sale shall apply from the date of alteration. A copy of current Terms and Conditions of Sale can be found on ARC’s website, www.eizo.com.au. The Customer acknowledges and warrants that he/she/it will regularly inspect the said website for any updated or altered Terms and Conditions and that there is no duty or obligation whatsoever on ARC to inform or advise the Customer of any such altered Term.
1.3 If a Customer cancels or alters any order or part order for special goods or standard goods with special materials at any time after ARC has received the order, then ARC reserves the right to charge the Customer the costs of any special goods or materials already acquired for the order, together with the cost of any labour and tooling already expended to the date of such cancellation or alteration.
1.4 Goods & Services Tax (“GST”), Sales Tax or any other applicable tax or duty payable shall be paid by or reimbursed by the Customer to ARC on demand, and the Customer shall indemnify and keep indemnified ARC in respect of all taxes and duties including GST arising out of any sale of goods or the subsequent use of the goods after the sale to the Customer. The amount of such tax or duty shall be calculated using the rates and methods of assessment in force at the time of delivery.
2.1 All prices shall be those referred to in ARC’s price lists and/or arrangements current at the date of Invoice.
2.2 Prices shall be subject to change without notice.
2.3 Prices will include any freight and clearance charges based on sea freight. ARC reserves the right to charge any international freight charges incurred on top of those charges (e.g. if a more urgent form of delivery is required, the Customer will pay all domestic freight charges).
3. TERMS OF PAYMENT
3.1 Unless otherwise stated on the Invoice, all prices are strictly net.
3.2 Payments shall be made in full by the due date shown in ARC’s invoice/order confirmation.
3.3 Customers shall not be entitled to withhold payments by reason of any account query, dispute or set off.
3.4 If the Customer fails to make payment in accordance with Clause 3, ARC shall be entitled to:-
(a) Require the payment of cash upon delivery of any further goods;
(b) Charge an interest charge at the rate of one point five per centum (1.5%) per month on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid. Such interest charge is to be computed from the due date for payment AND the parties agree that such interest charge is not a penalty but a true measure of damages incurred by ARC ;
(c) Claim from the Customer all costs, expenses and charges incurred on any account whatsoever on an indemnity basis including but not limited to any action taken by ARC to recover monies or goods owing by the Customer, including but not limited to mercantile agents’ costs and legal costs and disbursements on a solicitor/client basis;
(d) Credit any payments received from the Customer first against any interest charges and costs and all such charges shall be payable on demand;
(e) Cease any further deliveries to the Customer and to terminate any agreement in relation to goods that have not been delivered;
(f) Preclude Customers who have overdue accounts from participating in any special deals, discounts, bonus payment redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
4.1 Any date or time quoted for delivery is an estimate only and ARC shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render ARC liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
4.2 The Customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of ARC or any other cause whatsoever.
4.3 ARC's obligation to deliver shall be discharged on arrival of the goods at the Customer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, ARC shall be entitled to charge a fee for any delay experienced or arrange for the storage of the goods at the risk and cost of the Customer including all transportation, storage and other consequential costs. ARC may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
In the event that ARC supplies the Customer (referred to in this clause as the Consignee) with goods on consignment, the following clauses will apply:
5.1 The Consignee will use its best endeavours to sell the goods and promote the sale of the goods and will submit to ARC every Friday a report detailing the sales of goods during the previous week. Any goods which are opened or damaged whilst on consignment will be deemed to have been sold by the Consignee.
5.2 The Consignee must pay ARC for the goods within twenty-four (24) hours of sale. The Consignee will hold the proceeds of the sale on trust for ARC until payment has been made to ARC.
5.3 The Consignee will return the goods to ARC within ninety (90) days of delivery if not sold or within twenty-four (24) hours of demand by ARC.
5.4 Property in the goods shall remain with ARC until sold by the Consignee in the regular course of its business.
5.5 The Consignee will insure all goods on consignment for their full insurable or replacement value, whichever is the higher.
5.6 ARC may inspect on twenty-four (24) hours notice the premises in which the goods are stored by the Consignee.
6.1 The Customer shall examine the goods immediately after delivery and ARC shall not be liable for any misdelivery, shortage, defect or damage unless ARC receives details in writing within seven (7) days of the date of delivery of the goods.
7. PROPERTY AND RISK
7.1 Notwithstanding delivery of the goods or their installation, property in any given goods shall remain with ARC until the Customer has paid and discharged any and all other indebtedness to ARC on any account whatsoever, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
7.2 The risk in the goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
7.3 The Customer acknowledges that it is in possession of the goods solely as a bailee for ARC until payment as defined in clause 3 has been made in full to ARC and until such payment:
7.4 The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; and
7.5 The Customer shall store the goods separately from its own goods and those of any other party and in a manner which clearly identifies the goods, whether as separate chattels or as components, as the property of ARC .
7.6 The Customer shall maintain records of goods owned by ARC identifying them as ARC’s property, of the persons to whom the goods are sold or disposed to and of the payments made by such persons for such goods. The Customer shall allow ARC to inspect these records and the goods themselves on request.
7.7 The Customer hereby irrevocably grants to ARC , its agents and servants, an unrestricted right and license, without notice to enter premises occupied by the Customer to identify and remove any of the goods the property of ARC in accordance with the Terms and Conditions of Sale without in any way being liable to the Customer or any person claiming through the Customer. ARC shall have the right to sell or dispose of any such goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
7.8 ARC licenses the Customer to install the goods. If the goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of ARC until payment as defined in Clause 3 has been made in full to ARC unless the other materials or part thereof are or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
7.9 The Customer shall be at liberty to agree to sell the goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with clause 6, the Customer shall sell as an agent and bailee for ARC and that the entire proceeds from the sale thereof shall be held in a separate account on trust for ARC.
7.10 The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by ARC and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to ARC.
8. PERSONAL PROPERTY SECURITIES ACT
8.1 The Customer acknowledges and consents to ARC maintaining registration on the register of any security interest contemplated by these Terms in any manner ARC considers appropriate. The Customer agrees to execute all documents and provide all information and assistance required by ARC to ensure registration and maintenance of any security interest, including to ensure that ARC may acquire and maintain any perfected security interests relating to the goods and any proceeds, to register a financing statement or financing change statement and to ensure that ARC‘s position, rights and obligations are maintained in spite of the PPS Act.
8.2 The Customer acknowledges that ARC may register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest), and waives any right to receive notice of a verification statement in relation to any registration in respect of the goods.
8.3 The Customer agrees not to register a financing change statement in respect of a security interest contemplated by these Terms, or in favour of a third party, without ARC’s prior written consent.
8.4 To the extent that Chapter 4 of the PPS Act would otherwise apply to any enforcement of a security interest, and section 115(1) of the PPS Act allows parties to contract out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Customer agrees that it has no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143.
8.5 In so far as section 115(7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Customer agrees it has no rights under them: section 127; section 129(2) and (3); section130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
8.6 Unless otherwise agreed and to the extent permitted by the PPS Act, both ARC and the Customer agree not to disclose any information contemplated in section 275(1) of the PPS Act to an interested person, or as requested by an interested person. The Customer agrees to waive any right it may have had under section 275(7)(c) of the PPS Act to authorise any disclosure of that information.
8.7 For the purpose of section 20(2) of the PPS Act, the collateral is the Goods, including any Goods provided by ARC from time to time. These Terms are a security agreement for the purposes of the PPS Act.
8.8 ARC may, at its absolute discretion, apply any amounts received pursuant to these Terms in any way ARC determines, to satisfy any obligations relating to a security interest contemplated by these Terms.
9.1 Neither party excludes or limits the application of any Statute (including the Competition and Consumer Act 2010 (Cth) as amended from time to time ("the Act“)), where to do so would contravene that Statute or cause any provision of these Terms and Conditions to be void. Nothing in these Terms and Conditions modifies or excludes the conditions, warranties, and undertakings and other legal rights under the Act and other laws. Except as expressly set out in these Terms and Conditions, and the Act, ARC makes no warranties or other representations under or in connection with these Terms and Conditions, and ARC’s liability in respect thereof, is limited to the fullest extent permitted by law.
9.2 To the extent permitted by law, all implied conditions and warranties are excluded. To the extent that any implied conditions and warranties cannot be excluded, the Customer’s sole and exclusive remedy for any loss or damage, (whether direct, indirect, liquidated, special or consequential and including loss or damage arising as a result of death or personal injury to the Customer or any other person), howsoever arising (including by reason of any breach of contract, condition or warranty (whether express or implied)) is, where permitted at law, limited to any one of the following, as determined by ARC : (a) In the case of any Goods supplied by ARC : i. the replacement of the relevant Goods or supply of equivalent Goods; or ii. the repair of the Goods; or iii. after prior agreement between ARC and the Customer, payment of the cost of replacing or having the Goods replaced or repaired; or iv. reimbursement of some or all amounts paid by the Customer in respect of the Goods.
9.3 Goods which are not manufactured by ARC are subject solely to the warranties (if any) specified by the manufacturers or the third party suppliers to ARC, and the Customer acknowledges that, to the extent permitted by law, ARC gives no warranties beyond such manufacturers or suppliers warranties.
9.4 The Customer acknowledges that ARC makes no representations or warranties as to the fitness or suitability for any purpose of any of the Goods.
9.5 Except as required by law, ARC are not obliged to accept Goods returned for any reason.
9.6 Subject to the Act and any other legislation, ARC is not liable to the Customer for any loss or damage whether direct, indirect, liquidated, special or consequential and including loss or damage arising as a result of death or personal injury, however caused (including negligent or reckless conduct or omission) which the Customer or any other person may suffer or incur which may, without limiting the generality of the foregoing, arise directly or indirectly in respect of the Goods, any defects in the Goods and/or of its officers, agents, employees to comply with the Contract or any obligation imposed by law.
9.7 If the Customer is considered a Consumer, ARC’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. A Consumer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. A Consumer is also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
9.8 The warranty period for the goods varies according to the specific warranties provided by different Manufacturers. Customers should contact their Sales Representative for details of each warranty. ARC will bear the cost of valid warranty claims. The cost of rejected warranty claims are to be born by the Customer. Any Customer with a warranty or warranty expenses claim should notify Customer Services; email to email@example.com.
10. FORCE MAJEURE
10.1 ARC shall not be liable for any failure or delay in supply or delivery the goods where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of ARC including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, civil commotions or accidents of any kind.
11.1 If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors of if a receiver or manager or administrator or controller is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator or administrator is appointed, ARC may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any goods not paid for in accordance with these Terms and Conditions.
12.1 Other than in respect of ARC’s obligations pursuant to Clause 8 hereof ARC shall not be liable to accept any returned goods but may in its absolute discretion accept the return of goods, provided that such goods shall only be accepted for return with the prior written approval of a duly authorised representative of ARC. Goods returned for credit pursuant to this clause will be subject to a handling and administration charge equivalent to 20% of the invoiced value of the returned goods. Return freight and other expenses will be paid for by the Customer and no returns of special goods will be accepted. Any returned goods must be accompanied with a relevant invoice number and/or Goods Return Authority.
13. GOVERNING LAW
13.1 The Customer agrees that these Terms and Conditions of Sale shall be construed according to the laws of the State or Territory as ARC may in its sole discretion determine. Proceedings by either ARC or the Customer may be instituted and/or continued in such State or Territory as ARC may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws that State.
14. SERVICE OF DOCUMENTS
14.1 The Customer agrees that service of any notices or Court documents may be effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.
15. STATEMENT OF DEBT
15.1 A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of ARC shall be prima facie evidence of the amount of indebtedness of the Customer to ARC at that time.
16. ELECTRONIC COMMUNICATIONS
16.1 In addition to delivery in person, via post and via facsimile, the customer agrees to have invoices sent via email.
16.2 The Customer agrees that email communications from ARC to the Customer constitute an "electronic communication" within the meaning of the Electronic Transactions Act 2000 (NSW) (“the Act”)
16.3 The Customer agrees that in agreeing to receive invoices via email, the Customer is designating “an information system for the purpose of receiving electronic communications” within the meaning of the Act.
16.4 The Customer agrees that evidence of the “dispatch” (within the meaning of the Act) by ARC of an email is also prima facie evidence of the “receipt” of the email by the Customer within the meaning of the Act. Unless the contrary is proven the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.