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.
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.
“Guarantor” means that person (or persons) who
agrees to be liable for the debts of the Customer on a principal debtor basis.
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.
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).
shall mean the Price payable for the Goods as agreed between Strike Group and
the Customer in accordance with clause 4 of this contract.
The Competition and
Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
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
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.
Price and Payment
Strike Group’s sole discretion the Price shall be either:
indicated on invoices provided by Strike Group to the Customer in respect of Goods
Group’s current price at the date of delivery of the Goods according to Strike
Group’s current Price list; or
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.
Group reserves the right to change the Price in the event of a variation to Strike
Strike Group’s sole discretion:
deposit may be required; or
shall be due on delivery of the Goods.
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.
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.
and other taxes and duties that may be applicable shall be added to the Price
except when they are expressly included in the Price.
Delivery of Goods
Strike Group’s sole discretion delivery of the Goods shall take place when:
Customer takes possession of the Goods at Strike Group’s address; or
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
Strike Group’s sole discretion the costs of delivery are:
in the Price; or
addition to the Price.
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.
failure of Strike Group to deliver shall not entitle either party to treat this
contract as repudiated.
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.
Strike Group retains ownership of the Goods nonetheless, all risk for the Goods
passes to the Customer on delivery.
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.
Group and the Customer agree that ownership of the Goods shall not pass until:
Customer has paid Strike Group all amounts owing for the particular Goods; and
Customer has met all other obligations due by the Customer to Strike Group in
respect of all contracts between Strike Group and the Customer.
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
is further agreed that:
practicable the Goods shall be kept separate and identifiable until Strike
Group shall have received payment and all other obligations of the Customer are
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
Group shall have the right of stopping the Goods in transit whether or not
delivery has been made; and
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
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
Customer shall not deal with the money of Strike Group in any way which may be
adverse to Strike Group; and
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
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
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.
Securities Act 2009 (“PPSA”)
(a) financing statement has the
meaning given to it by the PPSA;
(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.
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
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.
Customer undertakes to:
(a) promptly sign any further
documents and/or provide any further information (such information to be
complete, accurate and up-to-date in all respects) which Strike Group may
reasonably require to:
a financing statement or financing change statement in relation to a security
interest on the Personal Property Securities Register;
any other document required to be registered by the PPSA; or
(iii) correct a defect in a
statement referred to in clause 8.3(a)(i)
(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
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.
Customer hereby waives its rights to receive notices under sections 95, 118,
121(4), 130, 132(3)(d) and 132(4) of the PPSA.
Customer waives its rights as a grantor and/or a debtor under sections 142 and
143 of the PPSA.
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.
anything to the contrary contained herein or any other rights which Strike
Group may have howsoever:
(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.
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.
will not be accepted for return other than in accordance with 10.1 above.
will only be accepted provided that:
Customer has complied with the provisions of clause 10.1; and
Group has agreed in writing to accept the return of the Goods; and
Goods are returned at the Customer’s cost within seven (7) days of the delivery
Group will not be liable for Goods which have not been stored or used in a
proper manner; and
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.
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.
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.
13.1 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.
Default and Consequences of
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.
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.
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.
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.
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.
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:
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
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
receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Customer or any asset of the Customer.
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.
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
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.
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
assess an application by the Customer; and/or
notify other credit providers of a default by the Customer; and/or
exchange information with other credit providers as to the status of this
credit account, where the Customer is in default with other credit providers;
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.
Customer consents to Strike Group being given a consumer credit report to
collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act
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):
provision of Goods; and/or
marketing of Goods by Strike Group, its agents or distributors; and/or
verifying and/or checking the Customer’s credit, payment and/or status in
relation to the provision of Goods; and/or
of any payment instructions, direct debit facilities and/or credit facilities
requested by the Customer; and/or
the daily operation of Customer’s account and/or the collection of amounts
outstanding in the Customer’s account in relation to the Goods.
Group may give information about the Customer to a credit reporting agency for
the following purposes:
obtain a consumer credit report about the Customer;
the credit reporting agency to create or maintain a credit information file
containing information about the Customer.
information given to the credit reporting agency may include:
particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer
and driver’s licence number;
concerning the Customer’s application for credit or commercial credit and the
that Strike Group is a current credit provider to the Customer;
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;
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;
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);
that cheques drawn by the Customer for one hundred dollars ($100) or more, have
been dishonoured more than once;
that credit provided to the Customer by Strike Group
has been paid or otherwise discharged.
Unpaid Strike Group’s
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:
lien on the item;
right to retain the item for the Price while Strike Group is in possession of
right to sell the item.
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
18.3 These terms and conditions and any contract to which
they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts
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.
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.
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
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.
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.