Terms of Trade

Innovate Group Ltd referred to in these terms of trade as “The Company”

1. GENERAL

(a) Entire Agreement: A customer’s order is made on these terms and the entire agreement between the Company and the customer is comprised in these terms and conditions, (except to the extent that they are modified in writing and signed by both parties), the completed credit application and the guarantee, if any, and it is expressly agreed that there are no other understandings, representations or warranties of any kind, (express or implied) forming part of this contract.

In particular:

(i)       Any condition contained in the customer’s order which is inconsistent with qualities or is contrary to these conditions shall be of no effect unless that condition is expressly accepted in writing by the Company.

(ii)     Any variation, waiver or cancellation of the customer’s order shall be of no effect unless accepted in writing by the Company. Where the Company accepts cancellation, the Company may levy a handling charge of up to 10% of the price.

(iii)    Where the customer and the Company agree to a variation in the quantity of the goods, the goods shall be priced either at the rate applicable to the original quantity or the revised quantity at the absolute discretion of the Company.

(b)    Orders for Goods: Each order provided by a customer to the Company will be deemed an offer by the customer to buy the goods subject to these terms and conditions. No offer will be accepted unless and until the Company fulfills the customer's order, or provides notice of its acceptance of the order, to the customer. The Company reserves the right to refuse or partially accept orders.

(c)     Contract Formation: A contract will only come into existence between a customer and the Company when the Company has accepted an order in accordance with clause 1(b).

Severability: If any terms or conditions or part thereof contained in these terms of trade are held to be invalid, illegal, unenforceable, or void for any reason or reasons, is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. This does not invalidate the remaining provisions of these terms, nor does it affect the validity of enforceability of that provision in any other jurisdiction, and all the remaining terms and conditions (or part thereof) will remain in full force and effect.

(b)    Event of Default: The customer agrees that in the event of default of payment of any amount due, the customer shall pay upon demand, all reasonable costs, charges and legal expenses (including costs between solicitor, and own client) including any collection costs incurred by the Company in recovering the outstanding amount from the customer

(c)     No Assignment: The customer may not assign all or any of the rights or obligations of the customer under these terms of trade without the prior written consent of the Company.

2. PRICE AND TERMS OF PAYMENT

(a)    The price payable for the goods will be given to the customer when the Company accepts a purchase order in accordance with clause 1(b, and shall be payable by the customer to the Company in Australian dollars by electronic funds transfer into the Company's nominated bank account.

(b)    The Company’s prices referred to in this contract and in any quotation, which may have formed the basis of this contract are exclusive of Goods and Services Tax. The customer shall pay Goods and Services Tax on the goods or services the subject of this contract and the amount of each payment payable under this contract shall be increased accordingly.

(c)     The Company’s prices are exclusive of other taxes, duties and other imposts which if chargeable are payable by the customer whether they are imposed or brought into force before or after acceptance of the customer’s order.

(d)    If the goods are exported the price and other moneys due by the customer shall be paid in Australian currency.

(e)    All prices are strictly net and unless otherwise stated in writing by the Company on acknowledging the order are due for payment on prior to dispatch of any product.

(f)      The customer must pay any deposit required with the customer’s order in accordance with clause 17.

(g)    Without prejudice to its rights to sue for payment or exercise any other remedy, where any payment is not made on the due date the Company may:

(i)       Charge the customer interest on the amount outstanding at the rate of 2% above the Commonwealth Bank Corporate Overdraft Reference Rate, from time to time, accruing on a daily basis until payment is made, whether before or after any judgment, but the charging of interest does not extend the time for payment nor imply any forbearance to sue or otherwise recover overdue monies. The Company reserves the right to claim interest under any law providing for interest on late payment,

(ii)     Demand payment of the arrears as well as payment in advance for any undelivered goods before proceeding with manufacture or making any further delivery of goods under this or any other contract between the Company and the customer.

(iii)    The right to restrict or withhold the sale of further goods on credit is reserved where the Company has reason to doubt the customer’s ability to pay for such purchases.

(h)    If the Company allows payment of customer’s accounts by credit card or other means of money transfer or electronic payment the customer will comply with the Company’s procedures and charges for doing so and will not withdraw any authority for charging, transferring or debiting on less than one months’ notice.

3. DELIVERY

(a)    The Company may withhold delivery where the customer is in breach of any obligations under clause 2.

(b)    If the customer fails or refuses or indicates to the Company that the customer will fail or refuse to take or accept delivery, then the goods  will be deemed to have been delivered when the Company was willing to deliver them.

(c)     The Company reserves the right to dispatch the customer’s order in one delivery or by instalments. Where the Company acknowledges an order, which provides for delivery by instalments (and the customer has agreed in writing to receive the order in instalments) the Company  will be entitled to payment for each instalment delivered (as if it were a separate contract) but failure to deliver any instalment  will not entitle the customer to cancel the contract as to any remaining instalments.

(d)    Any quotations of delivery times by the Company are made in good faith but are estimates and not commitments. The Company  will not be bound by any  estimates. If no dates are specified, delivery will be within a reasonable time.

(e)    Where the customer requests a particular method of delivery and the Company agrees in writing then the customer shall cover the cost of delivery by that method from the point of dispatch of the goods by the Company. Otherwise the Company will select the method of delivery.

4. SHORTAGES

The Company’s liability for shortages in the quantity of the goods supplied is limited to making up the shortages. No claim for shortages in quantity will be allowed unless the customer gives written notification of the shortage in writing within 3 days of delivery and provides a reasonable opportunity for the Company to take all necessary steps to investigate the claim.

5. RISK AND LOSS IN TRANSIT

(a)    Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the goods  will pass to the customer on dispatch of the goods from the Company's place of business.

(b)    Goods leaving the Company’s premises are deemed to be adequately packed. Claims made for damage or loss in transit must be made against the carrier in the prescribed manner below:

(i)       Prior to acknowledging delivery to the carrier, the customer must ensure that the complete consignment as per the carrier’s note has been received.

(ii)     Should there be a shortage or visible damage to outer packaging the carrier’s note must be endorsed accordingly.

(iii)    Within 3 days of receipt of consignment the customer must ensure that all product received is in good order and condition.

(c)     No claims will be considered after 3 days of receipt of goods.

RETURN OF GOODS FOR CREDIT

The Company is under no obligation to accept the return of goods supplied. Goods supplied in accordance with the customer’s order can only be returned with the prior written approval of the Company to do so. In particular:

(i)       Requests to return goods must be submitted in writing within 10 days from the date of supply.

(ii)     Where goods are accepted for credit they must be delivered at the customer’s expense into the Company’s store from where they were purchased in original condition and packaging.

(iii)    The original invoice number must be quoted and reason for return given.

(iv)    The Company reserves the right to levy a restocking fee against any returns it may agree to accept. Such fees may be up to 15% and levied at the Company’s absolute discretion. Goods specially imported or brought in or procured on behalf of the customer cannot be returned except with prior written approval from the Company and then only on such terms and conditions as the Company may agree. Electrical goods however are non-returnable.

7. DISPUTES

(a)     Compliance with this clause:

In the event that any part of the invoice is disputed the amount not under question must  be paid promptly according to, applicable payment terms. If there is any claim or dispute arising hereunder, the parties must comply with this clause 7 prior to the institution of any legal proceedings.

(b)     Notice of dispute

Where the Company or a customer claims that a dispute, controversy or claim has arisen between the parties in relation to these terms, the party making the claim must provide written notice to the other party specifying the nature of the dispute.

(c)     Resolve dispute in good faith

Within 14 days of receipt of the written notice by the other party, or such longer period as the parties may agree in writing, the parties will in good faith and acting reasonably use their best efforts to resolve the dispute, controversy or claim.

(d)     Legal proceedings

In the event that the dispute, controversy or claim has not been resolved in accordance with clause 7(c), either party is then free to commence legal proceedings to resolve the dispute.

8. OWNERSHIP

(a)     Ownership of all goods sold by the Company is retained by the Company until full payment is received for the goods and all other sums which are or which become due to the Company from the customer on any account, are paid in full.

(b)    Until such payment is made and ownership of the goods has passed to the customer, the customer will:

(i)       have no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation the customer owes to the Company;

(ii)     not be able to claim any lien over the goods;

(iii)    hold the goods on a fiduciary basis as the Company's bailee and owes the Company the duties and liabilities of a bailee;

(iv)    store the goods (at no cost to the Company) separately from all other goods of the customer or any third party in such a way that they remain segregated and readily identifiable as the properly of the Company;

(v)     not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;

(vi)    maintain the goods so supplied in good order and condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company, and to return the goods immediately if called upon to do so by the Company; and

(vii)  the customer hereby agrees to meet all costs of and any incidentals in the recovery of the goods as well as any shortfalls between the amount owing and, the value of the goods recovered.

(c)     Notwithstanding the retention of ownership, the customer may, prior to payment in full, as agent for the Company, sell the goods under a bona fide transaction in the ordinary course of business not intended to deprive the Company of the benefit of the retention of title. ln the event of a sale of the goods, or any of them prior to payment in full, the customer  will, as trustee for the Company;

(i)       Hold all moneys received by the customer on any such sale of the goods separate from the customer’s own money and in the name of and to the credit of the Company and the customer will on request from the Company pay such proceeds to the Company; and

(ii)     Hold all claims against the purchasers of any such goods who have not made payment for the same in trust for the Company and the Company may, upon the occurrence of any default under this contract, either in its own name or in the name of the customer make claim to and issue proceedings to recover the sale price of such goods. If called upon to do so by the Company, the customer  will assign to the Company all rights against the person to whom the customer has supplied the goods.

(d)    In respect of any goods which are mixed with, installed on the customer’s premises, or used as constituent parts of any product manufactured or constructed by the customer for on sale immediately upon such manufacturing or construction occurring:

(i)       The Company’s ownership of the goods  will be transferred to part ownership of the processed goods;

(ii)     The Company’s part ownership  will be an equal share to the proportion that the invoiced value of the Company’s goods used in such processing bears to the total invoice value of all goods plus the customer’s reasonable direct costs of processing; and

(iii)    The Company’s part ownership  will be absolute.

(e)    The customer  will not, so long as the goods remain the property of the Company, charge or purport to charge the goods nor deal with the goods in any other way than in accordance with the provisions of these terms of trade.

9. COMPANY’S MAINTENANCE GUARANTEE

(a)    The customer  will ensure that the goods ordered are reasonably fit and suitable for the purpose for which they are required.

(b)    In the case of goods not of the Company’s own manufacture the customer is entitled to only such benefits as the Company may receive under any guarantee given to the Company by the manufacturers in respect thereof. The Company will  not be liable for consequential or special damages under any circumstances whatsoever.

(c)     In lieu of any warranty, condition or liability implied by law, the Company’s liability in respect of any defect in or failure of the goods supplied or for any loss, injury or damage attributable thereto is limited to making good the replacement or repair of defects arising under normal proper use and maintenance arising solely ,from faulty design, materials or workmanship within the guarantee period if stated or otherwise within 12 months of the date of supply provided always that such defective parts are promptly returned to the Company. At the termination of the appropriate period all liability on the Company’s part ceases.

(d)    This warranty does not cover damage from misuse, accident, neglect, installation, modification, adjustment or improper operation or maintenance.

(e)    Any advice, recommendation; information, assistance or service (*customer information*) provided by the Company in relation to the goods’ use or application is given in good faith and is believed to be appropriate and reliable. Any such customer information provided, and any statements or representations made by the Company in relation to any goods supplied by the Company is provided or are made without liability or responsibility on the part of the Company.

(f)      The Company’s liability under this contract and the warranty in this clause is confined to the customer named in this contract and it being agreed that the Company has no liability to any purchaser of the goods from the customer in that the customer’s rights under this contract are not assignable without the prior written consent of the Company.

10. ERRORS OR OMISSIONS

Clerical errors or omissions, whether in computation or otherwise in any quotation, acknowledgement or invoice, will be subject to correction and will not bind the party who made the error, provided they give notice to the other party and correct the error within a reasonable time with due care and skill.

11. FORCE MAJEURE

Neither party will be liable for any failure to performs its obligations under these terms where such delay or failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a Government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of or delay in transportation or any other cause beyond the that parties control (Force Majeure Event), provided that the affected party:

(i)       promptly notifies the other party of the commencement of the Force Majeure Event;

(ii)     uses its best endeavours to overcome or work around the Force Majeure Event and to minimise its effects; and

(iii)    uses its best efforts to resume performance of the obligation frustrated by the Force Majeure Event as soon as its cause has abated. 

12. COMPLIANCE WITH REGULATIONS

The customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation and operation of the goods.

13. GOVERNING LAW

The contract and these terms of trade shall be governed by the laws of New South Wales in the Commonwealth of Australia, and each party submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia.

14. PRIVACY ACT 1988 (Cth)

The Company will comply with all applicable privacy laws (including the Privacy Act 1988). All personal information or sensitive information collected pursuant to this agreement will be handled in accordance with the Company's Privacy Policy, which is available on the Company's website as varied from time to time.

15. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

(a)    Expressions used in this clause 15 have the meaning ascribed to them in the PPSA.

(b)     The customer agrees to grant the Company a Security Interest in the goods to secure the Company's rights against the customer under this Contract.

(c)     The customer acknowledges and agrees that any Security Interest created by this Contract, or any transaction contemplated by it, extends to, and acts as a Security Interest in respect of, any proceeds (including any account) derived from, or from a dealing with, the goods and accession to the goods.

(d)    The customer agrees to do anything which the Company may require from time to time to:

(i)       enable the Company to register fully valid and effective financing statements or financing change statements with respect to any Security Interest over PPS Property created by these terms and conditions or any transaction contemplated by them; and

(ii)     ensure that any Security Interest which is purported to be reserved or created by these terms and conditions, or any transaction contemplated by them, is:

(iii)    a first ranking perfected Security Interest over all PPS Property;

(iv)    perfected by control to the extent possible under the PPSA; and

(v)     if applicable, recorded as a purchase money security interest on the PPSR.

(e)    The customer agrees:

(i)       to not, without first providing at least 14 days written notice to the Company, change its name, ACN, ABN, address, email address, facsimile number or any other details that have been, or are required to be, recorded on the PPSR in connection with any Security Interest created by these terms and conditions or any transaction contemplated by them;

(ii)     to pay all costs in connection with the registration, discharge or amendment of any financing statement or financing change statement; and

(iii)    to not, without the prior written consent of the Company, lodge or serve a financing change statement or an amendment demand in relation to any Security Interest created by these terms and conditions or any transaction contemplated by them.

(f)      The customer irrevocably waives the right to receive from the Company any verification statement or notice in relation to a registration event in accordance with section 157(3)(b) of the PPS Act.

(g)    The customer and the Company agree that:

(i)       to the extent that section 115(1) of the PPSA allows them to be excluded, sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and

(ii)     to the extent that section 115(7) of the PPSA allows them to be excluded, sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137,

(iii)    do not apply to any enforcement by the Supplier of any Security Interest in the PPS Property.

(h)    Termination

On termination of the Contract, howsoever caused, the Company (but not the customer's) rights contained in this clause 15 will remain in effect.

16. ACCEPTANCE

(a)     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.

(b)     These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the customer and the Company.

17. DEPOSITS

Deposits paid in respect of custom/indent products are non-refundable. Deposits paid in respect of standard products may be refundable in part at the Company’s sole discretion, based on the Company’s assessment of deductions for reasonable administrative costs and overheads to compensate the Company for the customer not proceeding with the customer’s order.

18. TERMINATION

(a)     Termination for Breach: The Company is entitled to terminate any Contract with immediate effect by giving written notice to the customer if:

(i)       the customer fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment; or

(ii)     the customer commits a material breach of its obligations under these terms and conditions and (if such breach is remediable) fails to remedy that breach within a period of 10 days after receipt of notice in writing requiring it to do so; or

(iii)    the customer commits a series of persistent minor breaches which when taken together amount to a material breach; or

(iv)    the customer suspends, or threatens to suspend, payment of its debts or is, or is deemed to be insolvent or unable to pay its debts as they fall due for payment or admits inability to pay its debts.

(b)     Termination for convenience: The Company may terminate a Contract for convenience and without cause or liability upon providing 30 days prior written notice to the customer.

(c)     Further Right of Termination: The customer acknowledges and accepts that the Company in its absolute discretion may by written notice terminate the Contract and all rights and obligations of the parties shall be at an end where, due to circumstances outside of its control, the Company can no longer provide the goods or it is not commercially viable for the Company to provide the goods.

(d)     Effect of Termination: Termination of these terms and conditions shall not prejudice any of the parties' rights and remedies which have accrued as at termination.

19. LIMITATION OF LIABILITY

(a)     Financial Liability: the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the customer in respect of:

(i)       any breach of these conditions;

(ii)     any use made or resale by the customer of any of the goods, or of any product incorporating any of the goods; and

(iii)    any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

(b)     Exclusions: all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

(c)     Limited Liability: the Company acknowledges that:

(i)       under applicable laws (including without limitation, the Competition and Consumer Act 2010 (Cth)), certain statutory expressed and implied guarantees and warranties may be implied into these terms that may not be excluded; and

(ii)     nothing in these conditions excludes or limits the liability of the Company to the extent that it would be illegal, or not permissible under law, for the Company to exclude or attempt to exclude its liability.

(d)     Total Liability: subject to clauses 19(b) and 19(c):

(i)       the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract will be limited to the value of the Goods in respect of which liability is being claimed or resupply of the relevant Goods at the Company's option; and

(ii)     the Company will not be liable to the customer for any loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation or loss whatsoever and howsoever caused which arise out of or in connection with the Contract.

(e)     Indemnity: to the full extent permitted by law, the customer must indemnify the Company and keep the Company indemnified from and against any liability and any loss or damage the Company may sustain as a result of any breach, act or omission arising directly or indirectly from or in connection with any breach of any of these Terms by the customer or its representatives.