Terms and Conditions
The whole of the Agreement between Absolute Storage Systems Pty Ltd ACN 055 316 526 ("Absolute Storage ") and the Applicant referred to in the Credit Application or the person from whom or on whose behalf orders are accepted (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Absolute Storage under these Terms ("Goods"), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
Payment is due on or prior to seven (7) days from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Absolute Storage may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 if payment is not received by the due date.
Absolute Storage reserves the right to require payment in advance, or cash on delivery.
Absolute Storage's express or implied approval for extending credit to the Customer may be revoked or withdrawn by Absolute Storage at any time.
Absolute Storage is entitled to set-off against any money owing to the Customer amounts owed to Absolute Storage by the Customer on any account whatsoever.
Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
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 Absolute Storage for enforcement of obligations and recovery of monies due from the Customer to Absolute Storage.
Quotations and Pricing
Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Absolute Storage by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Absolute Storage will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
Any quotation by Absolute Storage shall not constitute an offer. Quotations will remain valid for thirty (30) days from the date of the quotation.
Standard Equipment Orders shall clearly state part numbers, finish and descriptions.
Special Manufactured Equipment (manufactured to the Customer’s specifications or any equipment modified from but not included in current Standard Equipment as shown the current catalogue) will be manufactured to “approved” customer specifications and/or drawings but cannot be cancelled or returned. The Customer within seven (7) days after receipt shall ensure that it has been supplied in compliance with such specifications and/or drawings and no claim will be accepted thereafter.
When Absolute Storage has followed a design or instruction given by the Customer, the Customer will indemnify Absolute Storage against all damages, penalties, costs and expenses to which Absolute Storage may become liable through any work required to be done in accordance with those instructions involving an infringement of any statutory or common law right.
Production Specifications are intended to state details of standard catalogue products offered for sale at the time a catalogue is printed. Absolute Storage reserves the right to vary specifications without notice.
Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
Unless otherwise specified by Absolute Storage, the prices exclude:-
3.8.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Absolute Storage in calculating the price.
3.8.2 Costs and charges in relation to insurance, packing (other than the standard packing of Absolute Storage), crating, delivery (whether by road, rail, ship or air) and export of the Goods.
Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.
The contract price is based on Absolute Storage’s scheduled rates current at the date of quotation and the Customer will pay any additional moneys resulting from any increase between the date of the quotation and completion.
Prices quoted are on the basis of the whole quantity being supplied unless otherwise stated.
Delivery and Supply
Any times quoted for delivery and/or supply are estimates only and Absolute Storage shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Absolute Storage reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
Absolute Storage may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
A delivery charge will be applied to all orders.
If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
4.4.1 Shall be liable for any additional cost, charge and expense incurred by Absolute Storage in complying with the Customer's direction; and
4.4.2 Shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
4.4.3 Such action shall be deemed to be delivery to the Customer.
The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's premises or when Absolute Storage notifies the Customer that the Goods are available for collection.
If the Customer is unable or fails to accept delivery of the Goods, Absolute Storage may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Absolute Storage. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Absolute Storage on account of storage, detention, double cartage/delivery or similar causes.
The Customer may at their own cost collect orders from the Customer during normal business hours.
In addition to any lien to which Absolute Storage may, by statute or otherwise, be entitled, Absolute Storage shall in the event of the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Absolute Storage's possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer's stated standard policy not to accept back orders or the Customer specifically marks its order, "Do Not Back Order". Deliveries at any time are subject to availability of stock and Absolute Storage will not be liable for any charges due to product unavailability.
Where this contract relates to the provision of Goods plus labour to carry out construction (herein) called construction works) the following additional conditions shall apply:
The Customer will at its own expense convey the Goods to a position within twenty metres from where construction is required.
The Customer will ensure the safe custody of and minimize deterioration to the Goods and the Company’s equipment on site and will protect the same by providing covered and secured waterproof storage accommodation.
The Customer will prior to the commencement date for the construction ensure that:
7.3.1 The site is cleared and free from construction
7.3.2 Electricity services are available; and
7.3.3 (unless the parties otherwise agree in writing) the Company is enabled to carry out the construction works as one uninterrupted operation to be completed during normal working hours.
The contract price is fixed on the basis that the floors upon which the construction works are to be performed are level and even. Any additional costs incurred to shim the installation due to an uneven or out of level floor surface in excess of plus or minus 10mm elevation variation over the entire floor area shall be paid by the Customer.
Absolute Storage is not responsible for the strength or structural condition of the floors upon which the construction works are erected and makes no representation and gives no warranty that such floors or foundations are suitable for the construction works and shall not be liable for any damage or injury directly or indirectly attributable to any defects in or any structural movement collapse subsidence or failure of the said floors or foundations.
On completion any surplus goods delivered by the Absolute Storage shall remain the property of Absolute Storage and be removed from the site by Absolute Storage. Until such removal the Customer shall take reasonable precautions for the safe custody of such surplus goods.
If for any reason commencement of the construction works extends beyond two (2) weeks from the stipulated date, Absolute Storage shall be entitled to receive from the Customer an interim payment or payments on account of the contract price and may render an interim invoice or invoices accordingly.
Unless otherwise expressly provided for Absolute Storage will not be responsible for any builder’s work or other work involving alterations to the structure of any premises at which work is to be undertaken by Absolute Storage.
The Customer will serve all notices and make applications for an obtain all such licences, consents or approval as required under any Building regulations, or by-laws or any legislation for the time being in force prior to the carrying out of any construction works and the buyer shall be liable and indemnify and keep indemnified Absolute Storage against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.
Returns, Cancellations and Claims
The Customer shall not return any Goods to Absolute Storage without obtaining prior authorisation from Absolute Storage. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Absolute Storage only after Goods returned are either collected by Absolute Storage's authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Absolute Storage but must await receipt of a credit note.
All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
If goods are considered by the Customer to have been damaged in transit the carriers delivery note must be endorsed with full particulars of such alleged damage and the carrier and Absolute Storage must be notified in writing within three (3) days of receipt otherwise Absolute Storage will not be liable for any claim.
If Absolute Storage accepts the return of any Goods that have been ordered, Absolute Storage may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
No cancellations or partial cancellation of an order by the Customer shall be accepted by Absolute Storage unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Absolute Storage, will indemnify Absolute Storage against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
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 Absolute Storage in writing within seven (7) 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 Customer’s purchase order.
Personal Property Security Interest
The Customer grants Absolute Storage a Security Interest in the goods supplied as Commercial Property, more particularly described as Other Goods (a relevant sub-classification of collateral described in the regulations pursuant to section 20(4) of the PPSA) 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 Absolute Storage 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 Customers present and after acquired Absolute Storage, of which the goods form part, to the extent required to secured the Indebtedness.
As and when required by Absolute Storage the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Absolute Storage to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce Absolute Storage’s Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 2009 (“PPSA”).
The Customer shall not change its name without first notifying Absolute Storage of the new name not less than 7 days before the change takes effect.
The Customer warrants that the Goods are not purchased for personal, domestic or household purposes.
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 Absolute Storage in the following order:
9.5.1 To any obligation owed by the Customer to Absolute Storage which is unsecured, in the order in which the obligations were incurred;
9.5.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
9.5.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
Until the Customer has paid all money owing to Absolute Storage the Customer shall at all times ensure that:
9.6.1 All goods supplied by Absolute Storage, while in the Customer’s possession, can be readily identified and distinguished, and/or
9.6.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and traceable.
Where the Goods are purchased by the Customer and held as Inventory, nothing in this clause 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 Absolute Storage the Customer shall not sell or grant a Security Interest in the goods without Absolute Storage’s written consent.
The parties agree to 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, Absolute Storage. 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 Absolute Storage in respect of the Security Interest created by these terms and conditions.
Absolute Storage is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and seize the Goods in accordance with the Act without liability for trespass or any resulting damage.
For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA.
Privacy Act 1988 (“Privacy Act”)
To enable Absolute Storage to assess the Customer’s application for credit, the Customer authorises Absolute Storage:-
To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
10.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
10.3 To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Absolute Storage to give to and obtain from any credit provider named in the Absolute Storage's credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Absolute Storage in writing within seven (7) days of:-
Any alteration of the name or ownership of the Customer.
The issue of any legal proceedings against the Customer.
The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Absolute Storage for all Goods supplied to the new owner by Absolute Storage until notice of any such change is received.
No warranties except those implied and that by law cannot be excluded are given by Absolute Storage in respect of Goods supplied. Where it is lawful to do so, the liability of Absolute Storage for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Absolute Storage.
The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Absolute Storage from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Absolute Storage.
The Customer warrants to Absolute Storage that it is purchasing Goods as the principal and not as an agent.
Absolute Storage shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Absolute Storage shall be paid immediately and, unless prohibited by law, Absolute Storage may elect to terminate the Agreement.
The Customer as beneficial owner and/or registered proprietor now charges in favour of Absolute Storage all of the Customer's estate and interest in any real property (including but not limited to any applicable land Absolute Storage 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 Absolute Storage 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 Absolute Storage and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
Failure to Act
Absolute Storage's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Absolute Storage's failure to exercise any right or remedy available under these Terms or at law, or Absolute Storage's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Absolute Storage's right to demand timely payment of future obligations or strict compliance with the Terms.
These Terms shall be governed by and interpreted according to the laws of Victoria and Absolute Storage and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.