Terms & Conditions
1.1 “Strike Group” shall mean Strike Group Australia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Strike Group Australia Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Strike Group to the Customer.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Strike Group to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Strike Group to the Customer.
1.5 “Services” shall mean all Services supplied by Strike Group to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Strike Group and the Customer in accordance with clause 4 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Strike Group from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Strike Group shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Strike Group.
3.4 The Customer shall give Strike Group not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Strike Group as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by Strike Group only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4.1 At Strike Group’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Strike Group to the Customer in respect of Goods supplied; or
(b) Strike Group’s current price at the date of delivery of the Goods according to Strike Group’s current Price list; or
(c) Strike Group’s quoted Price (subject to clause 4.2) which shall be binding upon Strike Group provided that the Customer shall accept Strike Group’s quotation in writing within thirty (30) days.
4.3 At Strike Group’s sole discretion:
(a) a deposit may be required; or
(b) payment shall be due on delivery of the Goods.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Strike Group.
4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Strike Group’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Strike Group’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Strike Group or Strike Group’s nominated carrier).
5.2 At Strike Group’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Strike Group shall be entitled to charge a reasonable fee for redelivery.
5.4 The failure of Strike Group to deliver shall not entitle either party to treat this contract as repudiated.
5.5 Strike Group shall not be liable for any loss or damage whatsoever due to failure by Strike Group to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Strike Group.
6.1 If Strike Group retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Strike Group is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Strike Group is sufficient evidence of Strike Group’s rights to receive the insurance proceeds without the need for any person dealing with Strike Group to make further enquiries.
7.1 Strike Group and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Strike Group all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Strike Group in respect of all contracts between Strike Group and the Customer.
7.2 Receipt by Strike Group of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Strike Group’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Strike Group shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Strike Group to the Customer Strike Group may give notice in writing to the Customer to return the Goods or any of them to Strike Group. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Strike Group shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Strike Group then Strike Group or Strike Group’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Strike Group has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Strike Group for the Goods, on trust for Strike Group; and
(f) the Customer shall not deal with the money of Strike Group in any way which may be adverse to Strike Group; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Strike Group; and
(h) Strike Group can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Strike Group will be the owner of the end products.
8.1 In this clause:
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and Strike Group by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by Strike Group to the Customer (if any);
(ii) all Goods that will be supplied in the future by Strike Group to the Customer.
(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Strike Group for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Strike Group;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Strike Group; and
(e) immediately advise Strike Group of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Strike Group and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Strike Group, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Customer shall unconditionally ratify any actions taken by Strike Group under clauses 8.3 to 8.5.
9. Security and Charge
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Strike Group or Strike Group’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Strike Group (or Strike Group’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Strike Group elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Strike Group from and against all Strike Group’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Strike Group or Strike Group’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.
10.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Strike Group of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Strike Group an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Strike Group has agreed in writing that the Customer is entitled to reject, Strike Group’s liability is limited to either (at Strike Group’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) Strike Group has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Strike Group will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 Strike Group may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
12.1 For Goods not manufactured by Strike Group, the warranty shall be the current warranty provided by the manufacturer of the Goods. Strike Group shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13. Intellectual Property
13.1 Where Strike Group has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Strike Group, and shall only be used by the Customer at Strike Group’s discretion.
13.2 The Customer agrees that Strike Group may use any documents, designs, drawings or Goods created by Strike Group for the purposes of advertising, marketing, or entry into any competition.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Strike Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Strike Group.
14.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Strike Group from and against all costs and disbursements incurred by Strike Group in pursuing the debt including legal costs on a solicitor and own client basis and Strike Group’s collection agency costs.
14.4 Without prejudice to any other remedies Strike Group may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Strike Group may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Strike Group will not be liable to the Customer for any loss or damage the Customer suffers because Strike Group has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to Strike Group’s other remedies at law Strike Group shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Strike Group shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Strike Group becomes overdue, or in Strike Group’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
15.1 Strike Group may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Strike Group shall repay to the Customer any sums paid in respect of the Price. Strike Group shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Strike Group (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for Strike Group to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Strike Group.
16.2 The Customer agrees that Strike Group may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Customer consents to Strike Group being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by Strike Group for the following purposes (and for other purposes as shall be agreed between the Customer and Strike Group or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Strike Group, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 Strike Group may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that Strike Group is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Strike Group, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by Strike Group has been paid or otherwise discharged.
17. Unpaid Strike Group’s Rights
17.1 Where the Customer has left any item with Strike Group for repair, modification, exchange or for Strike Group to perform any other Service in relation to the item and Strike Group has not received or been tendered the whole of the Price, or the payment has been dishonoured, Strike Group shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Strike Group is in possession of the item;
(c) a right to sell the item.
17.2 The lien of Strike Group shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
18.3 These terms and conditions and any contract to which
they apply shall be governed by the laws of
18.4 Strike Group shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Strike Group of these terms and conditions.
18.5 In the event of any breach of this contract by Strike Group the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Strike Group nor to withhold payment of any invoice because part of that invoice is in dispute.
18.7 Strike Group may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.8 The Customer agrees that Strike Group may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Strike Group notifies the Customer of such change. The Customer shall be under no obligation to accept such changes except where Strike Group supplies further Goods to the Customer and the Customer accepts such Goods.
18.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.10 The failure by Strike Group to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Strike Group’s right to subsequently enforce that provision.