Terms & Conditions
1.1 “ASE” means Aussie Strength Pty Ltd T/A Aussie Strength Equipment, its successors and assigns or any person acting on behalf of and with the authority of Aussie Strength Pty Ltd T/A Aussie Strength Equipment.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by ASE to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between ASE and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with ASE’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and ASE.
3. Change in Control
3.1 The Client shall give ASE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by ASE as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At ASE’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by ASE to the Client; or
(b) the Price as at the date of delivery of the Goods according to ASE’s current price list; or
(c) ASE’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 ASE reserves the right to change the Price if a variation to ASE’s quotation is requested.
4.3 At ASE’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by ASE, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with ASE’s payment schedule;
(d) fourteen (14) days following the date of the invoice given to the Client by ASE;
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the
Client by ASE.
4.5 Payment may be made by cash, bank cheque, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and ASE.
4.6 All freight costs are estimates only (subject to clause 4.2). All freight costs must be paid in full by the Client.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to ASE an amount equal to any GST ASE must pay for any supply by ASE under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that ASE (or ASE’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At ASE’s sole discretion the cost of delivery is in addition to the Price.
5.3 ASE 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.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, ASE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ASE is sufficient evidence of ASE’s rights to receive the insurance proceeds without the need for any person dealing with ASE to make further enquiries.
6.3 If the Client requests ASE to leave Goods outside ASE’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.1 ASE and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid ASE all amounts owing to ASE; and
(b) the Client has met all of its other obligations to ASE.
7.2 Receipt by ASE 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.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of the Goods and must return the Goods to ASE on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for ASE and must pay to ASE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for ASE and must pay or deliver the proceeds to ASE on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of ASE and must sell, dispose of or return the resulting product to ASE as it so directs.
(e) the Client irrevocably authorises ASE to enter any premises where ASE believes the Goods are kept and recover possession of the Goods.
(f) ASE may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client 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 ASE.
(h) ASE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Client 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 that have previously been supplied and that will be supplied in the future by ASE to the Client.
8.3 The Client 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 ASE 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 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, ASE 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 ASE;
(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 ASE;
(e) immediately advise ASE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 ASE and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by ASE, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by ASE under clauses 8.3 to 8.5.
8.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of ASE agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies ASE from and against all ASE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ASE’s rights under this clause.
9.3 The Client irrevocably appoints ASE and each director of ASE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify ASE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ASE to inspect the Goods.
10.2 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).
10.3 ASE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ASE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. ASE’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, ASE’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If ASE is required to replace the Goods under this clause or the CCA, but is unable to do so, ASE may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, ASE’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 Client by ASE at ASE’s sole discretion;
(b) limited to any warranty to which ASE is entitled, if ASE did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 10.1; and
(b) ASE has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’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.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, ASE 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 Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client 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 Client failing to follow any instructions or guidelines provided by ASE;
(e) fair wear and tear, any accident, or act of God.
10.10 ASE may in its absolute discretion accept non-defective Goods for return in which case ASE may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
10.11 Notwithstanding anything contained in this clause if ASE is required by a law to accept a return then ASE will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where ASE has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of ASE.
11.2 The Client warrants that all designs, specifications or instructions given to ASE will not cause ASE to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify ASE against any action taken by a third party against ASE in respect of any such infringement.
11.3 The Client agrees that ASE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ASE has created for the Client.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily (at the sole discretion of ASE or ASE’s authorised representative) from the date when payment becomes due, until the date of payment, at a rate of up to two and a half percent (2.5%) per calendar month (and at ASE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes ASE any money the Client shall indemnify ASE from and against all costs and disbursements incurred by ASE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ASE’s contract default fee, and bank dishonour fees).
12.3 Further to any other rights or remedies ASE may have under this contract, if a Client has made payment to ASE by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction,in addition to any further costs incurred by ASE under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
12.4 Without prejudice to any other remedies ASE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ASE may suspend or terminate the supply of Goods to the Client. ASE will not be liable to the Client for any loss or damage the Client suffers because ASE has exercised its rights under this clause.
12.5 Without prejudice to ASE’s other remedies at law ASE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ASE shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ASE becomes overdue, or in ASE’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 ASE 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 Client. On giving such notice ASE shall repay to the Client any money paid by the Client for the Goods. ASE shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by ASE as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
14. Privacy Act 1988
14.1 The Client agrees for ASE to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by ASE.
14.2 The Client agrees that ASE may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
14.3 The Client consents to ASE being given a consumer credit report to collect overdue payment on commercial credit.
14.4 The Client agrees that personal credit information provided may be used and retained by ASE 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 Client’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 Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
14.5 ASE may give information about the Client 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 Client including credit history.
14.6 The information given to the CRB may include:
(a) personal information as outlined in 14.1 above;
(b) name of the credit provider and that ASE is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(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 Client no longer has any overdue accounts and ASE has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of ASE, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.7 The Client shall have the right to request (by e-mail) from ASE:
(a) a copy of the information about the Client retained by ASE and the right to request that ASE correct any incorrect information; and
(b) that ASE does not disclose any personal information about the Client for the purpose of direct marketing.
14.8 ASE will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
14.9 The Client can make a privacy complaint by contacting ASE via e-mail. ASE 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
15.1 The failure by ASE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ASE’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.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which ASE has its principal place of business, and are subject to the jurisdiction of the courts in that state.
15.3 Subject to clause 10 ASE shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ASE of these terms and conditions (alternatively ASE’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
15.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by ASE nor to withhold payment of any invoice because part of that invoice is in dispute.
15.5 ASE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.6 The Client agrees that ASE may amend these terms and conditions at any time. If ASE makes a change to these terms and conditions, then that change will take effect from the date on which ASE notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for ASE to provide Goods to the Client.
15.7 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.
15.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.