KADDLE PTY LIMITED T/AS MANIA NATIONAL
ABN 89 632 112 890 ACN 009 110 114
TERMS AND CONDITIONS OF SALE
01. Definitions and Interpretations
02. Formation of Contract of sale of Products
03. Risk, Delivery and Delay
04. Acceptance and Returns
05. Prices and Payments
06. Title in Products
07. Liability of Kaddle Pty Limited T/as Mania National
08. Customer Liability
(to Kaddle Pty Limited T/as Mania National and to third parties)
09. Intellectual Property
10. Termination
11. Applicable Law
12. Severability
13. Privily of Contract
14. Notices
15. Waiver
16. Variation of Terms and Conditions
1. DEFINITIONS AND INTERPRETATIONS:
In these Terms and Conditions of sale:
“Manias” means Mania National. (ACN 009 110 114) (ABN 89 632 112 890);
“Customer” means an authorised dealer or other person that enters into a contract with Mania National;
“Contract” means an agreement between Kaddle Pty Limited T/as Mania National and a customer for the supply of products;
“Delivery” is defined in clause 3.
“Event of Termination” means any event specified in clause 10;
“Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;
“Order” means an order placed by a customer with Kaddle Pty Limited T/as Mania National for the supply of products;
“Products” mean all of those goods, services, works or choices in action offered for sale by Kaddle Pty Limited T/as Mania National which is supplied by Kaddle Pty Limited T/as Mania National to a customer from time to time;
“Terms and Conditions”, “this agreement”, used herein means the terms and conditions of sale set out below as amended from time to time by Mania National, in accordance with clause 16.
2. FORMATION OF CONTRACT OF SALE OF PRODUCTS:
(APPLICATION FOR A COMMERCIAL CREDIT ACCOUNT AVAILABLE FROM creditapp@manianational.com.au)
2.1 Subject to clause 16. Hereof these Terms and Conditions supersede all previous terms and conditions in respect of any previous contract between Kaddle Pty Limited T/as Mania National and the customer which is hereby terminated.
2.2 A contract is made between Kaddle Pty Limited T/as Mania National and the customer of sale and purchase of Products only if an order has been placed and that order has been accepted by Mania National.
2.3 Acceptance of an order may be by delivery of all or part of the products ordered.
2.4 Save as provided in clause 2.5 hereof, Kaddle Pty Limited T/as Mania National will not accept customer’s orders for delivery:
(a) To any other person other than the customer;
(b) To any other location or destination other than that specified in the customers credit application.
2.5 All contracts are subject to and conditional upon the customer when requested by Mania National:
(a) Completing a credit application in a form and manner to the satisfaction of Mania National;
AND
(b) Providing security for payment in a form and manner to the satisfaction of Mania National;
2.6 Notwithstanding any qualification, or Purported qualification, of these Terms and Conditions contained in any purchase order or other document of the customer, these Terms and Conditions may only be varied in writing by Mania National.
3. RISK, DELIVERY AND DELAY:
3.1 Delivery occurs and Risk of loss to products will pass to the customer on the earlier of:
(a) Collection of products by the customer;
(b) Delivery of products to the customer;
and
(c) Delivery of products by Kaddle Pty Limited T/as Mania National to a carrier nominated by the customer or arranged by Kaddle Pty Limited T/as Mania National for the purpose of delivering products to the customer.
3.2 Kaddle Pty Limited T/as Mania National shall not be liable for any failure to deliver at all, generally, or by any date agreed in writing by Kaddle Pty Limited T/as Mania National as the date for deliver or for delay in delivery of products occasioned by any cause whatsoever, whether or not beyond the control of Mania National.
3.3 Kaddle Pty Limited T/as Mania National will use all reasonable endeavours to deliver products in a accordance with the terms on order but will not be liable for any failure to deliver products in accordance with any particular requirement of customer, Failure to deliver part or all of the products the subject of an order at any agreed delivery time will not entitle the customer to terminate the contract or to claim compensation of any nature. The customer is not entitled to reject products on the basis of late delivery.
3.4 Unless otherwise agreed, the cost of delivery of products to the customer is the responsibility of and to the account of the customer.
4. ACCEPTANCE AND RETURNS:
(APPLICATION FOR AUTHORITY TO RETURN GOODS AVAILABLE FROM returns@manianational.com.au)
4.1 The customer will be deemed to have accepted the products as being in accordance with an order placed with Kaddle Pty Limited T/as Mania National unless it notifies Kaddle Pty Limited T/as Mania National to the contrary within 48 hours of delivery of products.
4.2 Return of products for credits will not be accepted without prior written approval of Kaddle Pty Limited T/as Mania National and is conditional upon the products being returned:
(a) Freight prepaid in unused condition in original packaging; and
(b) All products returned for credit must be in an unsoiled, undamaged and resalable condition;
(c) All returned products must be accompanied by delivery docket (or a copy of it), a written statement including, the original invoice number, date of purchase and reason for return.
4.3 The value credited, if any, will be in the absolute and unfettered discretion of Mania National, and in any case limited to the amount originally invoiced for products, SAVE THAT products return will attract a charge (amount which shall be in discretion of Kaddle Pty Limited T/as Mania National but not less than 10% of the price for those products) to cover documenting, restocking, repacking and any other charges that be applied by Mania National.
5. PRICES AND PAYMENT:
5.1 The price payable for products is that amount set out in the Kaddle Pty Limited T/as Mania National price list. As published from time to time. The price payable by the customer for products is the list price as at the date of delivery, or otherwise notified in an invoice delivered with the products.
(a) List prices shown in Kaddle Pty Limited T/as Mania National price lists are exclusive of GST unless otherwise.
(b) All prices quoted by Kaddle Pty Limited T/as Mania National are exclusive of GST unless otherwise specified.
5.2 The customer promises to pay the price payable for products delivered by Mania National.
5.3 Payment in full is due before despatch unless credit facilities have been established in which case the customer agrees to pay not later than thirty (30) days after the end of month of invoice AND in default of payment within the time specified or as otherwise might be agreed, to pay interest. The interest payable is that rate payable pursuant to the penalty Rates Act (VIC) 1983.
6. TITLE IN PRODUCTS:
6.1 Notwithstanding that risk in products passes pursuant to clause 3, property in and ownership of products remains within Kaddle Pty Limited T/as Mania National and does not pass to the customer until such time as all amount which from time to time are owing by the customer to Kaddle Pty Limited T/as Mania National have been paid in full.
6.2 The customer acknowledges that until such time as the property ownership of products passes to the customer in accordance with clause 6.1, the customer is in possession of the products for and on behalf of Kaddle Pty Limited T/as Mania National as a fiduciary bailee and agent (such agency being limited to holding possession of the goods for and on behalf of Mania National).
6.3 Until payment is made for all goods, the customer shall store the goods separately and in such a manner that they are clearly identified as the property of Mania National.
6.4 The customer grants to Kaddle Pty Limited T/as Mania National an irrevocable license to enter any of the customer’s premises exercisable upon a breech of a term of these Terms and Conditions of sale or of the customer credit application, which license to enter permits Kaddle Pty Limited T/as Mania National or its agents authorised in writing, as its sole option to enter the customers premises and repossess and remove all products on the premises. The customer consents to such action and agrees that Kaddle Pty Limited T/as Mania National will not be liable for any loss suffered but the customer as a result of Kaddle Pty Limited T/as Mania National taking such actions.
6.5 The parties agree that this clause 6 is not intended to create a charge over products.
7. LIABILITY OF KADDLE PTY LIMITED T/AS MANIA NATIONAL & WARRANTY/GUARANTEES:
(CLAIM FORM AVAILABLE HERE)
7.1 All Kaddle Pty Limited T/as Mania National products are generally guaranteed to be free of material or manufacturing defects at the time of original purchase.
7.2 Each item of product is supplied with printed material, including but not limited to specifications, operating instructions and warranty/guarantee and these vary from product to product;
7.3 A warranty/guarantee does not extend to defects caused by ordinary fair wear and tear, improper installation or use, a failure to carry out maintenance or as the result of uses for which product was not designed or advertised.
7.4 A warranty/guarantee does not extend to any defects in products, components, or parts of products, where those have been supplied to Kaddle Pty Limited T/as Mania National by third parties SAVE THAT although Kaddle Pty Limited T/as Mania National will not be obliged by these terms and conditions to do so, Kaddle Pty Limited T/as Mania National will assist the customer to obtain benefit of the third party’s warranty/guarantee, if any.
7.5 To the extent permitted by law and except as set out in the agreement:
(a) All express or implied warranties, guarantees and conditions however arising are excluded; and
(b) The customer releases Kaddle Pty Limited T/as Mania National from, and shall indemnify, keep indemnified and hold harmless Kaddle Pty Limited T/as Mania National respect for all claims arising in connection with the products;
(c) The customer acknowledges that it has not relied upon any representation made by Mania National, which has not been stated express in this agreement or contained in any installation, and operating instructions provided with a product;
(d) Kaddle Pty Limited T/as Mania National shall not be liable for any loss or profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever arising directly or indirectly from products or any defect.
7.6 Any liability of Kaddle Pty Limited T/as Mania National for a breach of a condition or warranty implied by statute is limited to any one or more of the following:
(a) The replacement of the product (goods) within the meaning of the Trade Practises Act 1974 (“the Act”) (in this paragraph referred to as the “product”) or the supply of equivalent product;
(b) The repair of the product;
(c) The payment of the cost of replacing the product or of acquiring equivalent product;
or
(d) The payment of the cost of having the product repaired;
(e) The return of the product and the refund of the purchase price, or that part of the purchase price paid;
(f) The supply of the service (within the meaning of the Act) (in this paragraph referred to as the “services”), again;
(g) The payment of the cost of having the services supplied again;
Which ever is the lowest amount.
8. CUSTOMER LIABILITY (TO KADDLE PTY LIMITED T/AS MANIA NATIONAL AND TO THIRD PARTIES):
The customer indemnifies Kaddle Pty Limited T/as Mania National against all loss incurred by Kaddle Pty Limited T/as Mania National in connection with the following:
(a) Any act or omission of the customer including but not limited to, negligence of the customer, or any unauthorised representations made or warranty/guarantee given by the customer in connection with products;
and
(b) Any breach of, or default under these Terms and Conditions by the customer.
9. INTELLECTUAL PROPERTY:
The customer acknowledges that Kaddle Pty Limited T/as Mania National is and remains the owner of all copyright, designs. Patents and trademarks and other intellectual property rights used on or in relation to the products and advertising materials supplied in connection with such products.
10: TERMINATION:
It is an event of termination if,
(a) The customer breaches or fails to observe any of the terms of these Terms and Conditions;
(b) The customer trades outside the terms and conditions of the customers credit facilities (if any) or the supply of products to the customer will result in the customers trading outside the terms and conditions of the customers credit facilities and, in particular, the credit limit in force from time to time;
(c) The customer refuses or neglects to comply with a request pursuant to clause 5.2 hereof;
(d) The customer commits an Act of Bankruptcy, becomes insolvent or Kaddle Pty Limited T/as Mania National notifies the customer in writing of its view that the customer is in financial difficulties;
(e) An administrator or receiver is appointed over all or any of the business undertaking of the customer or the customer is served with a statutory demand under the Corporation law;
(f) Any guarantor of the Customer’s indebtedness to Kaddle Pty Limited T/as Mania National revokes a guarantee;
(g) If Mania National, its solicitor or agent delivers to the customer a written demand for payment or notifies the customer in writing that the security provided to Kaddle Pty Limited T/as Mania National for payment is not satisfactory.
10.1 In an event of termination, Kaddle Pty Limited T/as Mania National shall have the right to immediately terminate any arrangement, suspend credit facilities, cease to supply goods and cease to supply any customer or any part or division of that customer in the event of any of the following:
(a) The customer knowingly misrepresenting Kaddle Pty Limited T/as Mania National or its products to any member of the public or prospective purchasers;
(b) The customer continuing to supply Kaddle Pty Limited T/as Mania National products to a customer who has been terminated as a customer, having knowingly misrepresented Kaddle Pty Limited T/as Mania National or its products to members of the public or prospective purchasers, where Kaddle Pty Limited T/as Mania National has requested the customer continuing to supply Kaddle Pty Limited T/as Mania National products to desist because of concern that there will be further misrepresentation;
(c) There occurs or will occur a material change in ownership of the customer.
10.2 If an event of termination occurs Kaddle Pty Limited T/as Mania National will be entitled (without prejudice to any other right or remedy provided) to do any one or more of the following:
(a) To refuse to accept or to complete an order or any portion of an order from the customer which is unfulfilled at the time of the termination where Kaddle Pty Limited T/as Mania National elects to fulfil an order these terms and conditions will apply to that order;
(b) To cancel any credit facility provided to the customer;
(c) To terminate any contract by written notice to the customer;
(d) The customer will not be entitled to any compensation in respect of such termination;
(e) Where the customer has paid for products, Kaddle Pty Limited T/as Mania National may, at it option require the return for credit of any products in the possession of the customer and;
(f) The customer will immediately return to Kaddle Pty Limited T/as Mania National all price list and other materials provided by Kaddle Pty Limited T/as Mania National to the customer.
11: APPLICABLE LAW:
11.1 All payments shall be made to the Head Office of Kaddle Pty Limited T/as Mania National in WA.
11.2 These terms and conditions and any agreements entered into pursuant to clause 2.5 hereof are governed by and must be constructed in accordance with the laws of Western Australia and the customer herby agrees to submit to the exclusive jurisdiction of the courts of Western Australia.
12: SEVERABILITY:
If any of these terms and condition infringes any law in Australia it must be read down so that it does not infringe that law, otherwise it will be deemed void and severable.
13. PRIVITY OF CONTRACT:
The customer must not assign any contract without the prior written consent of Mania National.
14: NOTICES:
All notices to be given by a party under the terms and conditions must be in writing and may be given to the other party by hand deliver, prepaid post, email or facsimile addressed to the other party at its last known address or facsimile number or as specified by the other party. Any notice given under these terms and conditions will be deemed to have been received by the person to whom it was sent:
(a) In the case of hand deliver, upon delivery;
(b) In the case of prepaid post, three days after despatch;
(c) In the case of facsimile upon completion of the transmission;
and
(d) In the case of Kaddle Pty Limited T/as Mania National upon receipt at the Head Office of Kaddle Pty Ltd T/AS Mania National.
15: WAIVER
Waiver of any right by Kaddle Pty Limited T/as Mania National arising from a breach of these terms and conditions or upon the occurrence of an event of termination must be in writing and executed by Mania National. A failure or delay in the exercise of a right arising from a breach of these terms and conditions or the occurrence of an event of termination by Kaddle Pty Limited T/as Mania National does not result in a waiver of that right.
16: VARIATION OF TERMS AND CONDITIONS:
Kaddle Pty Limited T/as Mania National reserves to itself, without notice to the customer, the right to revise, vary, alter and otherwise amend these terms and conditions from time to time.