1. Interpretation
In these conditions unless the contrary intention appears:
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Look Corporate arising out of the sale of the Goods.
“Customer” means the person to or for whom the Goods are to be supplied by Look Corporate.
“Goods” means the goods sold to the Customer by Look Corporate and any related services provided by Look Corporate.
“Intellectual Property” means Look Corporate’s business names, trade names, trade marks, product names, copyright, patents, designs, industrial processes, trade secrets, know how and other intellectual property rights and any development in such intellectual property rights
“Look Corporate” means Look Corporate Pty Ltd, ABN 58 001 717 193.
“Purchase Price” means the list price for the goods as charged by Look Corporate at the date of delivery or such other price as may be agreed by Look Corporate and the Customer prior to delivery of the Goods.
2. Order for Goods
2.1 An order given to Look Corporate is binding on Look Corporate and the Customer, if:
(a) a written acceptance is signed for or on behalf of Look Corporate; or
(b) the Goods are supplied by Look Corporate in accordance with the order.
The Customer must place all orders to Look Corporate in writing specifying order number, date of order, goods required, requested delivery date, quotation reference number, place of delivery and full name and title of person placing the order.
2.2 An acceptance of the order by Look Corporate is then to be an acceptance of these Terms and Conditions by Look Corporate and the Customer and these Terms and Conditions will override any conditions contained in the Customer’s order. Look Corporate reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on Look Corporate until accepted by it.
2.3 An order which has been accepted in whole or in part by Look Corporate cannot be cancelled by the Customer without obtaining the prior written approval of Look Corporate, which it may refuse in its absolute discretion.
3. Limitation of Liability
3.1 The liability of Look Corporate is limited, to the extent permissible by law and at the option of Look Corporate:
in relation to goods, to;
(a) replacing 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 of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired;
and in relation to services, to:
(a) the supply of the services again; and
(b) the payment of the cost of having the services supplied again.
3.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions or in specific warranties accompanying the Goods, are excluded and Look Corporate is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever.
3.3 Any claims to be made against Look Corporate for short delivery of Goods must be lodged with Look Corporate in writing within 7 days of the delivery date.
3.4 Unless the terms and warranties are included in these Terms and Conditions or are provided in specific warranties accompanying the Goods, all prior discussions, quotations, warranties to the extent permitted by law, are excluded.
4. Delivery
4.1 The times quoted for delivery are estimates only and Look Corporate accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Look Corporate.
4.2 The Customer must provide suitable access for unloading and appropriate labour or mechanical means to unload the Goods upon delivery to the Customer’s nominated premises. The Customer is liable for all costs and charges therein.
4.3 Unless otherwise agreed, delivery shall be deemed to have taken place:
(a) if the Goods are to be collected from the Look Corporate’s premises, then:
(i) just prior to the Goods being loaded onto the carrier organised by the Customer; or
(ii) at the time and date when the Goods are scheduled to be collected by the Customer, whichever occurs first; or
(b) if the Goods are to be delivered to Customer’s address as nominated by the Customer on the order, then just prior to the Goods being unloaded from the carrier at the nominated address in accordance with the order, which order is delivered to the Customer at the Customer’s expense.
4.3 Signature of any delivery note by any agent, employee or representative of the Customer or where delivery is to any independent carrier, by such carrier or its agent, shall be conclusive proof of delivery.
4.4 Risk in accepting the Goods passes on delivery to the Customer.
4.5 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
4.6 Return of Goods will not be accepted by Look Corporate except by prior agreement in writing with Look Corporate. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
5. Price and Payment
5.1 The Customer must pay the Purchase Price and the Additional Charges to Look Corporate.
5.2 If the Customer is in default, Look Corporate may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
5.3 Where Look Corporate has not agreed to grant credit to the Customer, all payments must be made by the Customer in advance or on delivery of the Goods. Where Look Corporate has agreed to grant credit to the Customer, all payments are due within 14 days of the date of invoice or as otherwise agreed by Look Corporate and the Customer in writing.
5.4 The Customer must pay interest on overdue amounts calculated at the rate of 1% per month or part of a month from the due date until the date full payment is received by Look Corporate.
5.5 The Customer must pay an account keeping fee of $20 per month or part month thereof on any accounts that are overdue.
6. Retention of Title
6.1 Ownership, title and property of the Goods remains with Look Corporate until payment in full for the Goods and all sums due and owing by the Customer to Look Corporate on any account has been made. Until the date of payment:
(a) the Customer has the right to sell the Goods in the ordinary course of business and:
(i) where the Customer is paid by the third party, the Customer must hold the whole of the proceeds of the sale on trust for Look Corporate; or
(ii) where the Customer has not been paid by the third party, the Customer, at Look Corporate’s option, agrees to assign its claims against the third party to Look Corporate upon Look Corporate giving written notice in writing to that effect;
(b) until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for Look Corporate;
(c) the Goods are always at the risk of the Customer.
6.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
(a) if any payment to Look Corporate is not made promptly before the due date for payment;(b) if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Look Corporate is dishonoured.
6.3 In the event of a default by the Customer, then without prejudice to any other rights which Look Corporate may have at law or under these Terms and Conditions:
(a) Look Corporate or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
(b) Look Corporate may recover and resell the Goods;
(c) if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Look Corporate may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Look Corporate and the Customer may be ascertained. Look Corporate must promptly return to the Customer any goods the property of the Customer and Look Corporate is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
(d) In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Look Corporate. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Look Corporate at the time of the receipt of such proceeds. The Customer will pay Look Corporate such funds held in trust upon the demand of Look Corporate.
(e) The Customer must pay to Look Corporate all reasonable costs and disbursements incurred by Look Corporate in pursuing any recovery action, or any other claim or remedy against the Customer, including debt recovery fees and legal fees incurred by Look Corporate on a solicitor client basis and as a liquidated sum.
7. Personal Properties Securities Act (“PPSA”)
7.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
7.2 Look Corporate and Customer acknowledge that these Terms and Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of Look Corporate over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms and Conditions.
7.3 The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms and Conditions.
7.4 Look Corporate and the Customer acknowledge that Look Corporate, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.
7.5 To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Look Corporate.
(b) agrees to indemnify Look Corporate on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Look Corporate; and
(ii) enforcement or attempted enforcement of any Security Interest granted to Look Corporate by the Customer.
(c) agrees that nothing in sections 130 and 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;
(d) agrees to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) object to the purchase of the Collateral by the Secured Party under section 129;
(iv) receive notice of disposal of Collateral under section 130;
(v) receive a Statement of Account if there is no disposal under section 132(4);
(vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
(vii) receive notice of retention of Collateral under section 135;
(viii) redeem the Collateral under section 142; and
(ix) reinstate the Security Agreement under section 143.7.6
All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
8. Intellectual Property
8.1 The Goods may contain Intellectual Property rights that belong to Look Corporate. Property, right and title in that Intellectual Property will remain with Look Corporate despite the Customer acquiring the Goods.
8.2 The Customer agrees to do all things reasonably required and execute all documents to ensure Look Corporate retains ownership in the Intellectual Property.
8.3 The Customer must not pass any Intellectual Property to third parties without Look Corporate’s prior written approval.
8.4 The Customer agrees to indemnify and keep indemnified Look Corporate against any claim for infringement of Intellectual Property where the claim arises out of information supplied by the Customer or as a result of Look Corporate complying with the Customer’s order.
9. Specifications
9.1 Specifications, drawings and particulars of weights and dimensions provided by the Customer are subject to the accuracy of the information provided. The Customer acknowledges that Look Corporate may deviate from the specifications provided by the Customer if Look Corporate believes it is reasonably necessary to do so and any such deviation does not vitiate any contract with Look Corporate or form grounds for any claim against Look Corporate by the Customer.
9.2 The descriptions, illustrations and performances contained in Look Corporate’s catalogues, price lists and other advertising material do not form part of the contract of sale of the Goods.
9.3 Where specifications, drawings or other particulars are supplied by the Customer, Look Corporate’s quotation is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Look Corporate and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in any attached document or in the quotation.
9.4 Any performance figures given by Look Corporate are estimates only. Look Corporate is not liable for loss or damage resulting from failure of the Goods to attain such figures unless specifically guaranteed in writing by Look Corporate.
9.5 The Customer must comply with Look Corporate’s instructions and recommendations in relation to the Goods including instructions relating to graphic installations. To the extent permitted by law, Look Corporate is not liable for any loss or damage resulting from the Customer failing to follow such instructions.
10. Force Majeure
10.1 Look Corporate is not liable for delay in performing, or non-performance, of any of its obligations under these Terms and Conditions caused by unforeseeable circumstances beyond Look Corporate’s reasonable control (including, without limitation, acts of God, civil or military authority, accidents, earthquakes, strikes, the elements, labour disputes, shortage of suitable part or components or other materials, mechanical breakdown, fire, flood, tempest and war) and in such circumstances, Look Corporate will be entitled to a reasonable extension of time for the performance of its obligations.
11. General
11.1 These terms and conditions are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia.
11.2 These standard trading conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
11.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
11.4 No waiver of any of these terms and conditions or failure to exercise a right or remedy by Look Corporate will be considered to imply or constitute a further waiver by Look Corporate of the same or any other term, condition, right or remedy.
11.5 The Customer must keep confidential all information including these Terms and Conditions, the price of the supply of the Goods, and any information which Look Corporate may reasonably consider is confidential, unless the Customer is required by law to disclose such information or the information has become public information or with prior written consent of Look Corporate.
12. Indemnity
12.1 To the full extent permitted by law, Customer will indemnify Look Corporate and keep Look Corporate indemnified from and against any liability and any loss or damage Look Corporate 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 and Conditions by Customer or its representatives.
