1.1 Unless otherwise agreed in writing by Kray the following conditions shall govern this transaction and shall be incorporated into all future transactions where supplying any goods, as described in the individual tax invoice provided by Kray, ("the Goods") to a Customer ("Customer") whether or not these conditions are made expressly applicable to any particular transaction.
1.2 Terms and conditions contained in any form, order or other writing of the Customer and which are at variance with or additional to these terms and conditions are not binding upon Kray unless specifically accepted by Kray in writing.
1.3 Any order submitted to Kray shall constitute an invitation to do business only. A contract shall only be formed when an order is received from the Customer to purchase goods subject to Kray terms and conditions of sale. The quotation shall at the discretion of Kray be capable of being withdrawn at any time prior to acceptance by Kray of the Customer's offer to purchase Goods.
1.4 The description of the Goods on the face hereof or given in any other document is for identification purposes only and the use of such description shall not constitute the order for the supply of the Goods as a sale by description unless expressly stated.
1.5 Kray reserves the right to deliver the Goods by instalment and each instalment shall be deemed to be sold under a separate contract incorporating Kray's standard terms and conditions of sale. Failure by Kray to deliver any instalment shall not entitle the Customer to cancel the balance of the order.
1.6 In the event of a person signing as the Customer, signing on behalf of a company, partnership, firm or association of any kind whatsoever then each person by their signature also binds them personally as guarantor in favour of Kray for all or any amounts for which the Customer may be indebted to Kray.
2. RIGHTS IN RELATION TO GOODS
2.1 It is the responsibility of the Customer to ensure, when ordering that all Goods ordered are in conformity with the Customer's requirements.
2.2 The title to and property in the Goods shall not pass from Kray to the Customer and full legal and beneficial ownership of the Goods shall remain with Kray for so long as and until the Customer has paid the invoiced price for the Goods as well as any additional charges, taxes or duties, in full, in relation to the Goods to Kray in accordance with these terms and conditions.
2.3 Subject to these terms and conditions the Customer is permitted by Kray to process the Goods and to incorporate them in or with in or with any other item or items subject to the express condition that the new item or items or any other chattel whatsoever containing any part of the said Goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods the property of Kray and the security interest will continue in the mixed or improved goods.
2.4 The Customer assumes all risks of loss and damages to the Goods from the time the Goods are loaded for dispatch from the premises of Kray or such other premises at which the Goods are stored.
2.5 The Customer shall indemnity Kray against and pay to Kray immediately upon demand all and any loss, damage, cost, charge, expense or other liability (including but not limited to consequential loss, loss of profits and legal costs) whatsoever and howsoever incurred or sustained by Kray as a result of or in relation to the exercise by Kray of any its rights under this Clause 2 on a full indemnity basis.
2.6 Nothing shall confer any right upon the Customer to return the Goods purchased by it in accordance with these terms and conditions or refuse or to delay payment for them.
3. DELIVERY AND ACCEPTANCE
3.1 Any times quoted for delivery are estimates only and Kray shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or for delay in delivery arising from any circumstances of whatsoever nature which are outside Kray's control including in particular but without limiting the generality of the foregoing fire, flood, exposure, strike, lockout or other industrial act or dispute or the breakdown of or accident to plant, unavailability or shortage of raw materials, labour, power, supplies or transport facilities or act of god, or any order of direction of any local, State of Federal Government or Government authority.
3.2 Unless otherwise specified by the Customer in writing Kray may select the mode of shipment of carrier and Kray may make partial shipments to be separately invoiced and paid. All costs incurred in freighting the Goods shall be borne by the Customer.
4. PAYMENT TERMS
4.1 Payment for the supply of Goods shall be made within stipulated from the date of invoice subject to Kray's rights to require other terms of payment for any particular order.
4.2 Should the Customer fail to pay Kray the net invoiced purchased price within stipulated from the date of invoice of the Goods, then Kray is entitled to interest at a rate equal to two percent (2%) per annum above the overdraft rate for the time being charged by Kray 's banker for the relevant period on unsecured overdrafts of more than one hundred thousand Australian dollars, and which interest shall be compounded monthly and calculated from the due date for payment to the date upon which payment is actually made.
4.3 Should payment for supply of Goods be outside of or beyond Kray's payment terms the Customer shall be liable for all costs including legal costs (on a full indemnity basis), Mercantile Agencies, Debt Collection Agencies and all other fees incurred by Kray in recovering the amount outstanding.
5. PRICES AND VARIATION OF PRICES
5.1 All prices shall be a quoted or in accordance with Kray's price list current at the time of order whichever shall be the higher. Such price lists are subject to the conditions (if any) stated thereon. Verbal quotations are subject to written confirmation. Prices quoted are exclusive of any GST - we are below the GST threshold and do not need to charge it.
5.2 The Customer shall be required to pay to Kray any further amounts that may become payable by Kray as a result of any increases in the charges and duties applicable or relating to the sale of the Goods.
5.3 Prices may be varied by Kray from time to time and without notice to the Customer.
6.1 Upon the happening of any of the following events:
(a) the Customer failing to make any payment to Kray by the due date, or
(b) the Customer being in breach of any on of these terms and conditions, then and in any such event Kray shall have the right to :
(a) Cease supplying Goods to the Customer;
(b) Decline to deliver any Goods or the balance of any Goods still due under any order from the Customer.
(c) Stop any Goods in transit;
(d) Otherwise cease to perform any of its obligations to the Customer;
(e) Terminate this Agreement without incurring any liability at law or in equity without prejudice to its rights to recover amounts owing to it by the Customer including any damages;
(f) Enter into the premises of the Customer and repossess any Goods already delivered and whether or not title in
(g) recover from the Customer the payment of all Goods delivered and costs for freight, insurance, handling, storage and other expenses incurred by Kray , or
(h) to sell elsewhere and charge the Customer with any resultant loss.
6.2 Should Kray by its servants or agents enter upon any premises where Goods are situated for the purpose of repossessing such Goods in accordance with its rights under this Clause 6 and an action is brought against Kray for trespass or any other action against Kray based upon such entry or anything done during or in connection with such entry, the Customer shall indemnify and keep indemnified Kray for all damages for which Kray may be responsible as a result of such action.
7. RETURN OF GOODS
7.1 Any Goods being returned to Kray for warranty replacement or credit are to be labeled and consigned in accordance with Kray procedures for return of Goods as may be established by Kray from time to time. Such procedures to be followed for the time being for the return of the Goods include:
(a) Claims for shortages, loss or damage must be made by the Customer within two (2) days of receipt of the Goods.
(b) Express approval for return of the Goods, by issue of a Return Authorisation number, must first be obtained from a duly authorized officer of Kray,
(c) The Goods to be returned must include any and all relevant accessories. The Goods (including accessories) must be in the original packaging, software unopened and must be in an undamaged and saleable condition;
(d) No claim for credit in respect of any Goods returned may be approved by Kray unless the relevant claim form of the Customer, which must accompany any Goods returned, indicates at least the following:
(i) The purchase invoice number and date;
(ii) The reason for return; and
(iii) The name of the officer of Kray who has approved such return and the details of such approval;
(e) Subject to the foregoing, any Goods returned later than 14 days after date of invoice may be credited at the current price less at 15% restocking fee: and
(f) All cost incurred in returning the Goods to Kray shall be borne by the Customer, unless otherwise approved in writing by an authorised officer of Kray.
8. LIMITATION OF LIABILITY
8.1 Except as required by any provisions of the Competition and Consumer Act 2010 , or any relevant State Act all express or implied conditions, warranties, undertakings and covenants cannot be excluded under the provisions of the Competition and Consumer Act 2010 or any other relevant State Act the Customer's sole and exclusive remedy for any breach of a condition, warranty, undertaking or covenant hereunder shall as Kray may determine be limited to any one of the following :
i. from the date of invoice and from the period specified thereon for those particular Goods:
The replacement of the relevant Goods or the supply of equivalent goods provided that any defect has developed under proper and normal conditions of use and maintenance of the Goods by the Customer: or
ii. the repair of the relevant Goods; or
iii. the payment of the cost of replacing the relevant Goods or of acquiring equivalent goods if available at the time; or
iv. the payment of the cost of having the relevant Goods repaired.
Kray may at its discretion determine which of the foregoing limits shall apply in any case.
8.2 Save as provided in Clause 8.1, Kray shall not be liable to the Customer or any other person claiming under the Customer or any other person claiming under the Customer in contract or in tort for, or in respect of any direct indirect or consequential loss, damage or expense suffered by the Customer arising out of, or in connection with, or relating to the performance or any breach by Kray or any of its employees, servants or agents or any of these terms and conditions or any matter relating to the supply of goods or services or any error (whether negligent or not) information supplied to the Customer before or after the supply of Goods and / or services "Consequential Loss" shall include but not be limited to loss of profit, use or goodwill(or similar financial loss) and payment made or due to any third party, or any loss or damage caused by delay in the provision of any service, together with any expenses incurred by the Customer in connection therewith or arising there from, or incurred in mitigation or attempted mitigation of such loss or damage.
8.3 Without derogation from or limitation to any other provisions of these terms and conditions and subject to Clause 8.1, it is expressly agreed that in the event that there may be found to exist some liability by Kray to the Customer or any person claiming under the Customer in contract or in tort arising out of, in connection with, or relating to the performance or any breach of any of these terms and conditions or any matter relating thereto, or error (whether negligent or not) in the information supplied to the Customer before or after the supply of the Goods then Kray liability shall not exceed in total the amount paid to Kray pursuant to the supply of the Goods in relation to which the liability arose after deduction from such payment of all freight, taxes, duties and other amounts payable by Kray to third parties. The loss or damage referred to above shall mean and include without limiting the forgoing loss or damage caused by the negligence or willful, legal or other act or default of Kray or any of its employees, servants or agents whether or not such loss or damage is foreseeable or contemplated by Kray.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that any and all of the trademarks, trade names, patents, copyrights embodied in or in connection with the Goods and any information or documentation relating thereto are the property of Kray or such other manufacturer/supplier of the goods to Kray and further acknowledges that Kray has the rights to import and distribute the Goods in Australia and New Zealand.
9.2 The Customer further acknowledges that such copyright and intellectual property rights and other rights belonging to Kray or other manufacturers/suppliers as the case may be, shall only be used by the Customer with the consent of Kray or other manufacturer/supplier and the Customer shall not dispute or conspire or question the title of Kray or other manufacture/supplier as the case may be in respect of such rights relating to the Goods. The Customer acknowledges that the sale of Goods shall not confer upon it any rights or interest in any trademarks, patents, copyright, industrial designs or other intellectual property rights of Kray or such other manufacturer/supplier as the case may be.
In the event that any or any part of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent such terms, conditions or provisions shall be severed from the remaining terms and conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
Failure by Kray to insist upon strict performance of any term warranty or condition of these terms and conditions shall not be deemed a waiver therefore of any rights that Kray may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
12. WHOLE AGREEMENT
No modification, variation or amendment to these terms and conditions shall be of any force or effect unless in writing and signed by Kray.
Any notice or document required under these terms and conditions to be served on Kray must be addressed to its registered office for the time being. Any notice or document similarly required to be served on the Customer may be sent to the Customer's last known address. Notices and documents may be delivered by hand or sent by prepaid post and if sent by post shall be deemed to be served on the day on which they would be delivered in the ordinary course of post. Notices and documents may be delivered by facsimile or electronic email to the parties' last known facsimile number or email address and shall be deemed to be served at the time of transmission.
14.1 Unless inconsistent with the context:
Kray together with its successors and assigns. "Customer" shall include, in the case of an individual, his executors and administrators and in the case of a corporation, its successors and permitted assigns. Where the Customer is more than one person, all Customers, shall be jointly and severally bound by the terms and conditions contained or implied herein. "Goods" means all products and services offered for sale by Kray to the Customer.
14.2 The plural includes the singular and vice versa, and one gender includes all othergenders.
14.3 Marginal headings shall not effect the interpretation of these terms and conditions.