Terms and Conditions
All Orders given to A2K Technologies Pty Ltd (hereafter A2K), ABN No 76 161 5658 814 are subject to the following Terms and Conditions.
1. Defined Terms
1.1 In these Terms and Conditions:
“Delivery Address” means the delivery address of the Customer stated in an Order; “Contract” means the contract resulting from the acceptance by A2K of an Order in accordance with clause 2.3;
“Credit Application Form” means A2K credit application form by which a Customer can apply for credit account with A2K in respect of the sale of Goods;
“Customer” means any person who enters into a Contract with A2K for the sale and purchase of Goods and services;
“Delivery Time” means the time of delivery of the Goods either to the Delivery Address of the Customer or to the carrier of the Customer;
“GST” means any amount paid or payable under any GST law as that expression is defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;
“Quotation” means a formal statement setting out the estimated costs of a particular job or service;
“Order” means an order placed with A2K for the sale and delivery of Goods and Services;
“Order Confirmation” means a written confirmation of the Order by A2K that may be in the form of an invoice provided to the Customer by facsimile transmission or email or delivered to the Customer upon delivery of the Goods;
“Price” means the price for the Goods specified in the Order Confirmation, or the price set out in any specific quotations by A2K for the supply of Goods at a particular price, which quotation shall be open for acceptance within the period stated in a quotation or if no period is stated, within 30 days after the date of a quotation;
“Goods and Services” means the goods and services supplied or to be supplied by A2K to the Customer from time to time pursuant to the Contract;
“Terms and Conditions” means these terms and conditions as amended from time to time by A2K
1.2 In these Terms and Conditions (including defined terms), unless the context otherwise requires:
(a) The singular includes the plural and vice versa and each gender includes each other gender;
(b) Headings are included for convenience only and do not affect the interpretation of these Terms and Conditions.
2. Formation of Contract of Sale of Goods and Services
2.1 These Terms and Conditions supersede all previous terms and conditions imposed by A2K and may only be varied in writing by A2K.
2.2 Unless previously withdrawn, a quotation is valid for 14 days, stock availability and/or such other period as stated it. A quotation is not to be constructed as an obligation to sell but merely an invitation and no contractual relationship shall arise until the Customer ‘s order has been accepted by A2K.
2.3 Each Order will constitute an offer by the Customer to acquire Goods and Services from A2K upon and subject to the Terms and Conditions and to the exclusion of all other terms and conditions and notwithstanding any qualifications of the Terms and Conditions (including any terms and conditions contained in any purchase Order or other document of the Customer) unless expressly agreed by A2K in writing.
2.4 Quoted prices are subject to variation by A2K without notice.
2.5 The Customer agrees to maintain in confidence all quoted pricing and will abide by restrictions of use and disclosure of A2K’s Confidential Information. A2K reserves its rights to render the quotation as void if confidentiality information regarding pricing is disclosed.
2.6 A contract will only be made between A2K and the Customer for the sale and purchase of Goods and Services if and upon the acceptance of the Order by A2K by the provision to the Customer of an Order Confirmation.
2.7 A2K shall not be bound by any condition attached the Customer’s order, acceptance of Quotation and/or Purchase order, unless such conditions are expressly accepted by A2K in writing. The Customer acknowledges that such conditions are expressly negated.
2.8 An Order may only be made by the Customer to A2K, In writing, by facsimile transmission or by electronic data interchange;
2.9 The Contract resulting from the provision of the Order Confirmation cannot be cancelled by the Customer without A2K’s written consent and A2K may at its discretion impose a reasonable cancellation charge.
3. Payment Terms
3.1 Unless otherwise agreed to in writing by A2K, the Customer agrees to pay A2K the Price in full of Goods and Services on receipt of invoice issued. All goods and services being Financed through a third party will not be released to the Customer until as such time full payment has been received by A2K. All training courses must be paid in full 7 days before commencement of training course.
3.2 If A2K agrees to extend credit to the Customer, the Customer agrees to the terms stated in the Credit Application Form as terms and conditions of the Contract. Notwithstanding any credit terms given to the Customer, A2K may decline to sell Goods and Services on credit to the Customer at any time without notice to the Customer.
3.3 Payments are to be made via cash, cheque, bank cheque, EFTPOS and Credit Card. American Express incurs a 2.5% surcharge and Visa/MasterCard incurs a 1.5% surcharge (inc GST). Payments are too made without deduction or set off, whether legal or equitable.
3.4 The Price is GST and freight /delivery charge exclusive unless stated otherwise. The Customer must pay to A2K any GST which A2K is liable to pay in respect of supplies made by A2K under these Terms and Conditions
3.5 All financial institutions duty, stamp duty, Government charges, or direct costs of any kind associated with the operation of the customer’s account will be charged to the customer. Furthermore, the customer will be charged a fee of $100 for each dishonoured cheque.
3.6 Prices, fees and charges are subject to change without notice.
3.7 Unless otherwise stipulated, all quotes/prices are in Australian Dollars (AUD).
4. Interest will be charged on all overdue accounts at the rate prescribed by the Queensland Law Society (Standard contract default rate) from the due date to the date that the account is paid in full and should the account be referred to a collection agency the Applicant shall pay a 15% collection fee plus all legal costs on an indemnity basis.
5.Title and Risk
5.1 The Customer acknowledges and agrees that no title to the Goods shall pass to the Customer until payment in full of all monies owed to A2K has been received;
5.2 Risk of Loss or damage to the Goods will pass to the Customer at the time of dispatch from A2K’s nominated warehouse. A2K shall not be responsible for any loss or damage of Goods in transit. Insurance for Goods in transit to the Customer will not be arranged by A2K. The Customer shall be responsible for the insurance of Goods in transit, which insurance shall take account of these conditions.
5.3 Until the Price has been paid in full:
(a) legal ownership of Goods shall remain with A2K
(b) A2K may enter the Customer’s premises (or any premises where the Goods are located) without notice and without liability for trespass or any resulting damage and may retake possession of Goods. All costs and expenses incurred by A2K as a result in taking action to retake possession of Goods, together with transportation and storage charges, must be paid by the Customer to A2K on demand.
(c) A2K may keep or resell any repossessed Goods
(d) if the Customer resells Goods without first having paid A2K for them, the Customer shall hold that part of the proceeds of the sale which represents the invoiced price of Goods in a separate identifiable account as the beneficial property of A2K and shall pay the amount to A2K on request
(e) notwithstanding anything contained in sub clauses 5.3 (a)-(d), A2K shall be entitled to maintain its legal rights against the Customer for the Price of the Goods. The Customer acknowledges and agrees that A2K may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Customer waives its right under s 157 of the Personal Property Securities Act 2010 PPSA) to receive notice of any verification of the registration. If the Customer defaults in the performance of any obligation owed to the A2K under these Terms and Conditions or any other agreement with A2K to supply Goods to the Customer, A2K may enforce its security interest in any Goods by exercising all or any of its rights under these terms or the PPSA. To the maximum extent permitted by law, the Customer and A2K agree that the following provisions of the PPSA do not apply to the enforcement by A2K of its security interest in the Goods: sections 95,125, 130,135,142 and 143.
6 Security and Charge
Despite anything to the contrary contained herein of any other rights which the A2K 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 A2K or A2K’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 A2K (or A2K’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 meet.
(b) Should A2K elect to proceed in any manner in accordance with this clause and/or its sub-clause, the Customer and/or Guarantor shall indemnify A2K from and against all A2K’s costs and disbursements including legal costs on an indemnity basis. The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint A2K or the A2K’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
7 Credit Limit
The grant of any credit limit or facility is an indication only of A2K’s intention at that time. A2K may at any time or at its discretion vary and/or withdraw any credit limit or facility without liability to A2K or any other party.
8.1 Any timeframes quoted by A2K for the delivery of Products are estimates only.
8.2 A2K shall not be liable for delay or any failure or inability to deliver. A2K shall not be liable for any loss or damage whatever due to failure by A2K to deliver the
goods (or any of them) promptly or at all;
8.3 The failure of A2K to deliver shall not entitle the Customer to treat this contract as repudiated;
8.4 A2K reserves the right to withdraw an Order Confirmation at any time before the Delivery Time and will not be liable for any loss whatsoever arising from its
failure to deliver any or all of the Goods.
8.5 Any term of the Contract relating to the quantity of Goods is not the essence of the Contract. A2K reserves the right to make partial deliveries against an Order and to invoice each partial delivery separately and the Customer cannot reject Goods on the basis of partial delivery.
8.6 Where Goods remain in the possession of A2K after the Delivery Time (including where the Customer fails for whatever reason to take delivery of the Goods), A2K is entitled to charge the Customer for all Loss occasioned by the Customer not accepting delivery together with any costs and Loss in respect of the carriage, care and custody of the Goods.
8.7 Unless otherwise agreed by A2K, all Goods will be delivered to the Delivery Address.
8.8 The Customer must ensure that it or its employees or agents are in attendance at the Delivery Address at the agreed time or agreed period for delivery to accept delivery of the Goods and to acknowledge receipt upon the consignment note or invoice accompanying the Goods.
8.9 A2K may arrange for the storage and carriage of Goods by carriers, contractors or sub-contractors. Notwithstanding any specific instructions given by the Customer as to the mode of carriage of Goods, in the exercise of its absolute discretion A2K may have any Goods carried or forwarded by any method which it deems fit.
8.10 Unless otherwise agreed in writing by A2K from time to time, the cost of freight of Goods from the A2K warehouse shall be paid by the Customer.
8.11 Unless otherwise specified in a quotation, Goods shall be packed in A2K standard packing. The cost of any special packing and packing materials required by the Customer shall be at the Customer’s expense.
9. Inspection, Acceptance of Goods and Customer’s obligations
9.1 The Customer must inspect the Goods within 5 business days of the Delivery Time and if no inspection is so made, is deemed to have accepted the Goods.
9.2 The Customer has no claim for shortages, defects or any Loss in respect of Goods apparent on inspection unless:
(a) A complaint is made to A2K within 5 business days of the Delivery Time specifying the shortage or defect; and
(b) A2K is, after receipt of the complaint, permitted to inspect the Goods, have Goods inspected by manufacture, and/or investigate the complaint.
9.3 If a complaint is not made to A2K in accordance with clause 9.2, the Goods delivered will be deemed to be in accordance with the Contract, and A2K will not be held liable for any future Losses regarding the use or application of the Goods, and the Customer is bound to pay for them accordingly.
9.4 A2K shall not be under any obligation to accept Goods returned by the Customer. A2K will only accept the return of Goods from the Customer where:
(a) The Customer has complied with clause 9.2 and A2K is satisfied as to the claim by the Customer; and
(b) The Goods are returned to A2K in the same un opened condition as when first delivered to the Customer.
10. Cancellations and Returns
10.1 The Customer shall at no time cancel the whole or part of any order placed without A2K’s prior written approval. The Customer shall not return any Products without first providing to A2K an original proof of purchase.
10.2 Where the Customer has ordered incorrect Goods, an incorrect item number for Goods is used, an incorrect unit of issue or pack size is Ordered, an Order exceeds the Customer’s requirements, an incorrect account number is used, or an Order is duplicated, the Customer may after receiving written authority from A2K, return the Goods to A2K subject to the Goods being returned in the same condition as when first delivered to the Customer and subject to the Customer bearing the freight costs of the delivery and return of the Goods.
10.3 Notwithstanding any other provisions of these Terms and Conditions, the Customer shall not return any products which have been custom made, custom cut, custom processed or custom acquired
10.4 The Customer shall in all cases pay to A2K a restocking fee of 20% of the gross value of all returns
10.5 Where Goods are returned to A2K in accordance with the above provisions A2K may issue a credit note in respect of any amounts paid by the Customer in respect of those Goods, less restocking fee and relevant freight costs.
10.6 The Customer agrees that any Training course cancellations made by them, must be in writing and must be made 7 days prior to course commencement date. The Customer also agrees that if it cancels any training within 7 days of the course commencement date, then A2K will only be oblige to provide the Customer with a 50% credit of the total training course price as agreed to.
11.1 The Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice given by or on behalf of A2K shall be accepted at the Customer’s risk.
11.2 A2K shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of Products) which are not precisely and accurately communicated in writing to A2K prior to the Customer entering into a sale contract.
12 Limitation of Liability
12.1 Legislation such as the Competition and Consumer Act 2010 (Cth) may imply into these Terms and Conditions warranties or conditions or impose obligations which cannot be excluded, restricted or modified and these Terms and Conditions are read subject to such statutory provisions.
12.2 All other conditions, warranties, representations, liabilities, and obligations, whether implied or imposed by statute, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description are excluded to the extent permitted by law.
12.3 In the event that A2K breaches its obligations referred to in clause 12.1, to the extent allowed by law, its liability is limited to any one or more of the following, at its election:-
(a) The replacement of the Goods or the supply of equivalent goods;
(b) The repair of the Goods;
(c) The payment of the cost of replacing the goods or acquiring equivalent goods; or
(d) The payment of the cost of having the goods repaired.
12.4 The total liability of A2K under these Terms and Conditions is, to the extent permitted by law, expressed in this clause 12 and A2K will under no circumstances be liable to the Customer for any Loss incurred by the Customer or any other party resulting directly or indirectly out of the supply by A2K to the Customer or out of any breach of A2K under these Terms and Conditions or out of the negligence of A2K.
12.5 Nothing in these Terms and Conditions shall exclude or modify any conditional warranty implied by law where to do so would render these Terms and Conditions void.
12.6 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
12.7 The Customer agrees to limit any claim it makes to the cost of or of acquiring equivalent products.
13 Force Majeure
13.1 A2K shall not be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of A2K.
14.1 Upon the appointment of an Administrator, Receiver, Liquidator or Trustee in Bankruptcy to the Customer, A2K may by notice to the Customer, at its option and without prejudice to another right it may have, suspend or terminate an Order, cease further deliveries and may retain any monies paid by the Customer in relation to the Order and apply such monies against any loss or damage incurred by it in relation to the default by the Customer
15.1 Any part of these Terms being whole or part of a clause shall be capable of severance without affecting any part of these Terms.
16 Notice: The Customer agrees that it shall be deemed to have notice of any change to the Terms and Conditions and be bound by any subsequent versions of these Terms and Conditions as they appear on the website www.a2ktechnologies.com.au whether or not the Customer has actual notice thereof. A copy of any subsequent of these Terms and Conditions may also be obtained, by request, by telephone or email.
17.1 These Terms and Conditions take effect, are governed by and will be construed in accordance with the laws of the State of Queensland, Australia.
17.2 These Terms and Conditions are subject to change without notice.
17.3 The parties agree that any action arising out of, or relating to these terms may only be brought by a court of competent jurisdiction in the State of Queensland, Australia.
17.5 If we do not act in relation to a breach by you of these terms and conditions, this does not waive A2K’s right to act with respect to subsequent or similar breaches.
17.6 You may not assign or transfer any rights or benefits you may receive under these terms and conditions to any other person or entity without the prior written consent of A2K.
17.7 In reselling, maintaining or installing Goods, the Customer is not A2K’s agent or the agent of the manufacturer of Goods.