Conditions of Sale Mobility Joy
1 Definitions
Buyer means the purchaser of the Goods, whose details are set out in the invoice.
Goods means the products and or the services specified in the invoice.
Seller means Creare – Building Support Services Pty Ltd as trustee for the Arango Correa Family Trust trading as Mobility Joy.
2 General
Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified. These conditions (which will only be waived in writing signed by the Seller and Buyer) will prevail over all conditions of the Buyer's order, to the extent of any inconsistency.
3 Terms of sale
The Goods and all other products sold by Seller are sold on these terms and conditions. Unless previously withdrawn, Seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date.
5 Packing
The cost of any special packing and packing materials used in relation to the Goods are at the Buyer's expense, even if that cost has been omitted from any quotation.
6 Drawings and specifications
- All specifications and drawings, submitted by the Seller are approximate only and any non material deviation from any of these things does not form grounds for any claim against the Seller.
- The descriptions, illustrations and performances contained in catalogues and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
7 Performance
Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
8 Delivery
- The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
- The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
- The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
- If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason (i) this does not constitute a repudiation of the contract of sale formed by these conditions; and (ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.
9 Loss or damage in transit
- The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
- The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer: (i) has notified the Seller and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and (ii) serves a claim for compensation on the carrier within 7 days of the date of receipt of the Goods.
- The Seller's liability for Goods manufactured by it is limited to making good any defects. This must be done by repairing the defects or, at the Seller's option, by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched. This applies so long as: (i) the defects have arisen solely from faulty materials or workmanship; (ii) the Goods have not received maltreatment, inattention or interference; (iii) accessories of any kind used by the Buyer are manufactured by or approved by Seller; (iv) the seals of any kind on the Goods remain unbroken; and (v) the defective parts are promptly returned free of cost to the Seller.
- If the Goods are not manufactured by the Seller, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind (including loss of income or profit) arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller's negligence or in any way.
11 Consumer guarantees
The Seller's liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:
- in the case of Goods, any one or more of: (i) the replacement of the Goods or the supply of equivalent goods; (ii) the repair of the Goods; (iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; and (iv) the payment of the cost of having the Goods repaired; or
- in the case of services (ii) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
12 Prices
- Unless otherwise stated all prices quoted by vendor are exclusive of Goods and Services Tax (GST).
- Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses and sorting and stacking charges, (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
13 Payment
- The purchase price for the Goods plus GST where applicable is payable within a period of 30 days after the date of invoice (Payment Due Date) unless other terms of payment are agreed in writing between the parties.
- The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the Commonwealth Bank of Australia Overdraft Business Rate as published from time to time plus 2%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.
14 Rights in relation to Goods
- The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid: (i) title to and ownership of the Goods; (ii) to enter the Buyer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and (iii) subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Goods repossessed pursuant to clause 15(a)(ii).
15 Storage
The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 7 days of a request by the Seller for such instructions.
16 Returned Goods
- Except for any provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Goods returned by the Buyer. The Seller will do so only on terms to be agreed in writing in each individual case.
- If the Seller agrees to accept returned Goods from the Buyer under clause 17(a) of this clause, the Buyer must return the Goods to the Seller at the Seller's place of business referred to at the head of these conditions.
17 Goods sold
All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.
18 Cancellation
No order may be cancelled by the Buyer except with the written consent of the Seller.
19 Personal Property Securities Act (Cth) 2009 (PPSA)
- This agreement is a security agreement. The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest. The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration. Until title in the Goods has passed to the Buyer as contemplated by clause 14 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
- The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
19 Personal Information
- The Seller may collect your personal information to enable it to create a profile for the Buyer and to assist the Seller in offering to the Buyer the most appropriate Goods for its requirements.
- The Buyer’s personal information may be disclosed to its healthcare practitioner and/or insurer or funder. The Seller may also use the Buyer’s personal information for the purposes of marketing the Seller’s products and services, for example, to send newsletters and promotional offers which may be of interest to the Buyer. If the Buyer does not wish to receive marketing materials, it can unsubscribe by clicking the unsubscribe function in any electronic communication or contacting the Seller via our details set out below.
20 Termination
- This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
- Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
- Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
- The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
21 Place of contract
This agreement shall be governed by and construed in accordance with New South Wales law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the Sydney, New South Wales.
