1. Definitions
1.1 "Contract" means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 "KHE " means K.H. Equipment Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of K.H. Equipment Pty Ltd.
1.3 "Customer " means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting KHE to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer's executors, administrators, successors and permitted assigns.
1.4 "Goods " means all Goods or Services supplied by KHE to the Customer at the Customer's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
1.5 "Confidential Information " means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party's intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver's license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 "Cookies " means small files which are stored on a user's computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client's computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7 "Price " means the Price payable (plus any GST where applicable) for the Goods as agreed between KHE and the Customer in accordance with clause 6 below.
1.8 "Confidential Information " means any plans, drawings, specifications, trade secrets, patterns, methods, processes and any other information given to Customer by KHE for the purpose of carrying out the Services and which is not in the public domain.
1.9 "GST " means Goods and Services Tax (GST) as defined within the "A New Tax System (Goods and Services Tax) Act 1999" (Cth).
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 Notwithstanding clause 2.2 these terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on KHE's website. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.6 The Customer acknowledges and agrees that:
(a) the supply of Goods on credit shall not take effect until the Customer has completed a credit application with KHE and it has been approved with a credit limit established for the account;
(b) where the Customer does not elect to control their purchases by a Purchase Order and/or a Letter of Authority, then all purchases made by Customer and/or any other third party acting on behalf of the Customer to which the Goods are charged to the Customer's credit account, shall remain at all times payable by the Customer. All said notices of restrictions pertaining to purchases must be in writing and will remain in place until such time as the Customer revokes;
(c) the Customer agrees to notify KHE in writing immediately upon of the departure of the Customer employee if an authorised account user. Failure to advise KHE of such departures, then the Customer acknowledges they will be bound by all purchase orders made by that account user;
(d) in the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, KHE reserves the right to refuse delivery; and
(e) that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, KHE reserves the right to vary the Price with alternative Goods as per clause 6.2(c).
2.7 Any advice, recommendation, information, assistance or service provided by KHE in relation to Goods or Services supplied is given in good faith, is based on KHE's own knowledge and experience and shall be accepted without liability on the part of KHE, and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
2.8 None of KHE's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of KHE in writing nor is KHE bound by any such unauthorised statements.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that KHE shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by KHE in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by KHE in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of KHE; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Distribution of Goods via an Approved Reseller
4.1 The Customer agrees that until they are authorised as a distributor by KHE, (and hereinafter the Customer shall be referred to as “Reseller” for the purposes of this clause) the Reseller shall not be able to sell the Goods on as a Reseller for KHE or represent to any third parties that the Reseller is in any way acting for KHE. KHE shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Reseller is a party.
4.2 At KHE's sole discretion the Reseller acknowledges that only approved Reseller's shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites. 4.3 Orders from a Reseller are accepted on the basis that:
(a) unless otherwise agreed by prior approval between KHE and the Reseller, Goods may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale, and
(b) Goods are to be sold for retail or displayed for sale at only the nominated locations advised by the Reseller to KHE, and
(c) sale of Goods by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited
without prior written consent of KHE, and
(d) Goods are to be displayed, presented and marketed in the manner that is in the best interest of the brand name.
4.4 Any default of clauses 4.1-4.3 may at KHE's sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
4.5 KHE has sole discretion on which brands or Goods are made available to any approved Reseller and KHE does not guarantee continuing supply of any specific brand or Goods.
5. Change in Control
5.1 The Customer shall give KHE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by KHE as a result of the Customer's failure to comply with this clause.
6. Price and Payment
6.1 At KHE's sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by KHE to the Customer; or
(b) the Price as at the date of delivery of the Goods according to KHE's current price list; or
(c) KHE's quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 KHE reserves the right to change the Price:
(a) if a variation to the Goods which are to supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Goods cease to be available from KHE's third party suppliers, then KHE reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(d) in the event of increases to KHE in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond KHE's control.
6.3 Variations will be charged for on the basis of KHE's quotation, and will be detailed in writing, and shown as variations on KHE's invoice. The Customer shall be required to respond to any variation submitted by KHE within ten (10) working days. Failure to do so will entitle KHE to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At KHE's sole discretion a non-refundable deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
6.5 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by KHE, which may be:
(a) on completion of the Services (or delivery of the Goods); or
(b) by way of instalments/progress payments in accordance with KHE's delivery/payment schedule; or
(c) for approved credit account holders, thirty (30) days following the end of the month in which a statement is posted to the Customer's address or address for notices; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by KHE.
6.6 Payment may be made by cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and KHE.
6.7 KHE may in its discretion allocate any payment received from the Customer towards any invoice that KHE determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer KHE may re-allocate any payments previously received and allocated. In the absence of any payment allocation by KHE, payment will be deemed to be allocated in such manner as preserves the maximum value of KHE's Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 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 KHE nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to KHE an amount equal to any GST KHE must pay for any supply by KHE under this or any other Contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a) the Customer or the Customer's nominated carrier takes possession of the Goods at KHE's address; or
(b) KHE (or KHE's nominated carrier) delivers the Goods to the Customer's nominated address even if the Customer is not present at the address.
7.2 At KHE's sole discretion, the cost of delivery is in addition to the Price.
7.3 KHE may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
7.5 Any time specified by KHE for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. KHE will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then KHE shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Goods On Consignment
8.1 Where Goods are supplied on consignment the following provisions apply specifically to those Goods:
(a) the Goods shall be at the Customer's risk from the time of delivery and the Customer shall be responsible for insuring the Goods; and
(b) the Customer may retain possession of the Goods until the Customer sells them or KHE requires re-delivery of them to KHE, whichever
first occurs; and
(c) if KHE requires re-delivery of the Goods such re-delivery shall be at the Customer's cost; and
(d) KHE shall fax the Customer a consignment form on a monthly basis and the Customer shall notify KHE within forty-eight (48) hours of receipt by return fax of all consignment Goods sold during that that period and shall within seven (7) days of that monthly advice pay KHE for the Goods sold. Failure to comply with confirmation will result in KHE's right to invoice the Customer for all consignment Goods held in stock.
8.2 Furthermore, consignment Goods shall at all times remain the property of KHE and are returnable on demand by KHE. In the event that the consignment Goods are not returned to KHE in the condition in which the consignment Goods were delivered then KHE retains the right to charge the cost of repair or replacement of the consignment Goods.
8.3 The Customer further agrees that;
(a) KHE have the right to inspect the consignment Goods at any time upon giving written notice to the Customer; and
(b) KHE reserves the right to cease the supply of consignment Goods and enforce clause 8.2 if upon inspection it is found the consignment Goods totals do not correspond with information supplied by the Customer and/or the consignment Goods are not stored in accordance with KHE's instructions; and
(c) consignment Goods shall be placed on display at front of house together with any advertising material supplied by KHE to the Customer; and
(d) the stand for consignment Goods are to be kept stocked to the agreed minimum levels at all times; and
(e) the Customer is responsible for the upkeep of the stand and agrees to take all due care to ensure that the consignment Goods are not damaged or marked in any way; and
(f) they shall immediately advise KHE if for any reason they opt to remove the consignment Goods from display area.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, KHE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by KHE is sufficient evidence of KHE's rights to receive the insurance proceeds without the need for any person dealing with KHE to make further enquiries.
9.3 If the Customer requests KHE to leave Goods outside KHE's premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer's sole risk.
9.4 KHE shall not be liable for any defect or damage resulting from incorrect or faulty installation by any other third party installer.
9.5 KHE shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, KHE accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
10. Access
10.1 The Customer shall ensure that KHE has clear and free access to effect delivery of the Goods. KHE shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of KHE.
11. Title
11.1 KHE and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid KHE all amounts owing to KHE; and
(b) the Customer has met all of its other obligations to KHE.
11.2 Receipt by KHE 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.
11.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to KHE on request.
(b) the Customer holds the benefit of the Customer's insurance of the Goods on trust for KHE and must pay to KHE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for KHE and must pay or deliver the proceeds to KHE on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of KHE and must sell, dispose of or return the resulting product to KHE as it so directs.
(e) the Customer irrevocably authorises KHE to enter any premises where KHE believes the Goods are kept and recover possession of the Goods.
(f) KHE may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of KHE.
(h) KHE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 ("PPSA")
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) ”being a monetary obligation of the Customer to KHE for Services” that have previously been supplied and that will be supplied in the future by KHE to the Customer.
12.3 The 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 KHE may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, KHE 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 KHE;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of KHE;
(e) immediately advise KHE 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.
12.4 KHE 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.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by KHE, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by KHE under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of KHE agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies KHE from and against all KHE's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising KHE's rights under this clause.
13.3 The Customer irrevocably appoints KHE and each director of KHE as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer's behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify KHE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow KHE to inspect the Goods.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
14.3 KHE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, KHE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. KHE's liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, KHE's liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If KHE is required to replace the Goods under this clause or the CCA, but is unable to do so, KHE may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, KHE's liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by KHE at KHE's sole discretion;
(b) limited to any warranty to which KHE is entitled, if KHE did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) KHE has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer's cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, KHE shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by KHE;
(e) fair wear and tear, any accident, or act of God.
14.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by KHE as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that KHE has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10.
14.11 KHE may in its absolute discretion accept non-defective Goods for return in which case KHE may require the Customer to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
14.12 Notwithstanding anything contained in this clause if KHE is required by a law to accept a return then KHE will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where KHE has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of KHE. Under no circumstances may such designs, drawings and documents be used without the express written approval of KHE.
15.2 The Customer warrants that all designs, specifications or instructions given to KHE will not cause KHE to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify KHE against any action taken by a third party against KHE in respect of any such infringement.
15.3 The Customer agrees that KHE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which KHE has created for the Customer.
16. Confidentiality
16.1 Each party agrees to treat all information and ideas communicated by the other party confidential and each agrees not to divulge it to any third party, without the other party's written consent.
16.2 The quotation and the information contained in the quotation provided by KHE to the Customer is done so on a “commercial in confidence” basis thereby, the Customer agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of KHE.
17. Default and Consequences of Default
17.1 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 KHE's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes KHE any money the Customer shall indemnify KHE from and against all costs and disbursements incurred by KHE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, KHE's contract default fee, and bank dishonour fees).
17.3 Further to any other rights or remedies KHE may have under this Contract, if a Customer has made payment to KHE, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by KHE under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under this Contract.
17.4 Without prejudice to KHE's other remedies at law KHE shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to KHE shall, whether or not due for payment, become immediately payable if:
(a) any money payable to KHE becomes overdue, or in KHE's opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by KHE;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18. Cancellation
18.1 Without prejudice to any other remedies KHE may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions KHE may suspend or terminate the supply of Goods to the Customer. KHE will not be liable to the Customer for any loss or damage the Customer suffers because KHE has exercised its rights under this clause.
18.2 KHE 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 KHE shall repay to the Customer any money paid by the Customer for the Goods. KHE shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by KHE as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Goods made to the Customer's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Policy
19.1 All emails, documents, images or other recorded information held or used by KHE is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. KHE acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 ("the Act") including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation "GDPR") (collectively, "EU Data Privacy Laws"). KHE acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by KHE that may result in serious harm to the Customer, KHE will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to KHE in respect of Cookies where transactions for purchases/orders transpire directly from KHE's website. KHE agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer's:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to KHE when KHE sends an email to the Customer, so KHE may collect and review that information ("collectively Personal Information")
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via KHE's website.
19.3 The Customer agrees for KHE to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver's license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by KHE.
19.4 The Customer agrees that KHE may exchange information about the Customer with those credit providers and with related body corporates 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 including the Customer's repayment history in the preceding two (2) years.
19.5 The Customer consents to KHE being given a consumer credit report to collect overdue payment on commercial credit.
19.6 The Customer agrees that personal credit information provided may be used and retained by KHE for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.7 KHE may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
19.8 The information given to the CRB may include:
(a) Personal Information as outlined in 19.3 above;
(b) name of the credit provider and that KHE is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer's application for credit or commercial credit (e.g. date of commencement/termination of the credit
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and KHE has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of KHE, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer's overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.9 The Customer shall have the right to request (by e-mail) from KHE:
(a) a copy of the Personal Information about the Customer retained by KHE and the right to request that KHE correct any incorrect Personal Information; and
(b) that KHE does not disclose any Personal Information about the Customer for the purpose of direct marketing.
19.10 KHE will destroy Personal Information upon the Customer's request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.11 The Customer can make a privacy complaint by contacting KHE via e-mail. KHE will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Unpaid Seller's Rights
20.1 Where the Customer has left any item with KHE for repair, modification, exchange or for KHE to perform any other service in relation to the item and KHE has not received or been tendered the whole of any monies owing to it by the Customer, KHE shall have, until all monies owing to KHE are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of KHE shall continue despite the commencement of proceedings, or judgment for any monies owing to KHE having been obtained against the Customer.
21. Service of Notices
21.1 Any written notice given under this Contract shall be delivered by handing the notice to the other party, in person, leaving it at the address of the other party as stated in this Contract, or by sending it by registered post to the address of the other party as stated in this Contract.
21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post the notice would have been delivered.
22. Trusts
22.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not KHE may have notice of the Trust, the Customer covenants with KHE as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) The Customer will not without consent in writing of KHE (KHE will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23. General
23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s).
23.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party's right to subsequently enforce that provision. 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.
23.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria the state in which KHE has its principal place of business, and are subject to the jurisdiction of the courts in that state.
23.4 Subject to clause 14 KHE 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 KHE of these terms and conditions (alternatively KHE's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.5 KHE may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer's consent.
23.6 The Customer cannot licence or assign without the written approval of KHE.
23.7 KHE may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of KHE's sub- contractors without the authority of KHE.
23.8 The Customer agrees that KHE may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for KHE to provide Goods to the Customer.
23.9 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.
23.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.