TERMS AND CONDITIONS
The whole of the Agreement between Ace Hobby Distributors Australia Pty Ltd ABN 42 084 380 969 ("Ace Hobby") and the Applicant referred to in the Credit Application ("Customer") are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law ("Terms"). Any other contractual terms of the Customer (whether upon the Customer's order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Ace Hobby under these Terms ("Goods"), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.
2 Credit Terms
2.1 Payment is due on or prior to thirty (30) days from the date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Ace Hobby. Ace Hobby may charge liquidated damages at a rate equivalent to two percent (2.5%) in excess of the rate of interest for the time being fixed under Section 2 of the Civil Procedure Act 2005 if payment is not received by the due date.
2.2 Ace Hobby's express or implied approval for extending credit to the Customer may be revoked or withdrawn by Ace Hobby at any time.
2.3 Ace Hobby is entitled to set-off against any money owing to the Customer amounts owed to Ace Hobby by the Customer on any account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Ace Hobby for enforcement of obligations and recovery of monies due from the Customer to Ace Hobby.
3 Quotations and Pricing
3.1 Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Ace Hobby by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Ace Hobby will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by Ace Hobby shall not constitute an offer. Quotations will remain valid for 14 days from the date of the quotation.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.4 Unless otherwise specified by Ace Hobby, the prices exclude:-
3.4.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Ace Hobby in calculating the price.
3.4.2 Costs and charges in relation to insurance, packing (other than the standard packing of Ace Hobby), delivery (whether by road, rail, ship or air) and export of the oods.
3.5 Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.
3.6 The contract between Ace Hobby and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Department with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to the account of the Customer.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and Ace Hobby shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Ace Hobby reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 Ace Hobby may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
4.3 If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
4.3.1 shall be liable for any additional cost, charge and expense incurred by Ace Hobby in complying with the Customer's direction; and
4.3.2 shall pay for the whole of the invoiced value of the Goods pursuant to Clause 4 notwithstanding the staggered deliveries.
4.3.3 Such action shall be deemed to be delivery to the Customer.
4.4 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's premises or when Ace Hobby notifies the Customer that the Goods are available for collection.
4.5 If the Customer is unable or fails to accept delivery of the Goods, Ace Hobby may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Ace Hobby. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Ace Hobby on account of storage, detention, double cartage/delivery or similar causes.
4.6 The Customer agrees that it will be obliged to and shall pay for the Goods on the due date notwithstanding that delivery is made after the agreed delivery date, and notwithstanding that the Goods may not yet be delivered.
5.1 Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Ace Hobby from time to time:-
5.1.1 All sums outstanding become immediately due and payable by the Customer to Ace Hobby if the Customer makes default in paying any other sums due to Ace Hobby, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
5.1.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Ace Hobby (returning the same to Ace Hobby on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Ace Hobby provided that there shall be no right to bind Ace Hobby to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Ace Hobby pursuant to the fiduciary relationship.
5.1.4 Ace Hobby is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
5.2 In addition to any lien to which Ace Hobby may, by statute or otherwise, be entitled, Ace Hobby shall in the event of the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Ace Hobby's possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
6 Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer's stated standard policy not to accept back orders or the Customer specifically marks its order, "Do Not Back Order". Deliveries at any time are subject to availability of stock and Ace Hobby will not be liable for any charges due to product unavailability.
7.1 The Customer acknowledges and accepts that Ace Hobby sells its goods only through persons who have been authorised by Ace Hobby to sell specific product categories at specific locations and who comply with Ace Hobby's Terms and Conditions.
7.2 Subject to Part IV of the Trade Practices Act 1974:
7.2.1 Under no circumstances may the Customer sell Goods through the Internet or the mail without prior written authorisation from Ace Hobby.
7.2.2 The Customer is prohibited from selling Goods on the international market without the express written consent of Ace Hobby.
7.2.3 Ace Hobby does not grant to the Customer the exclusive rights to sell its Goods. Ace Hobby reserves the right to authorise and/or supply additional retailers in any market area that it deems necessary to adequately cover the market.
Subject to Clause 3.4 and unless otherwise agreed, Ace Hobby will ship by the least expensive route and carrier to all points. If the purchaser chooses a route with a higher charge than the route of Ace Hobby's choice for shipment, Ace Hobby will charge the difference to the Customer.
9 Returns, Cancellations and Claims
9.1 The Customer shall not return any Goods to Ace Hobby without obtaining prior authorisation from Ace Hobby. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer unless the Goods are returned through Ace Hobby's approved carrier. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Ace Hobby only after Goods returned are either collected by Ace Hobby's authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Ace Hobby but must await receipt of a credit note.
9.2 All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
9.3 If Ace Hobby accepts the return of any Goods that have been ordered, Ace Hobby may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
9.4 No cancellations or partial cancellation of an order by the Customer shall be accepted by Ace Hobby unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Ace Hobby, will indemnify Ace Hobby against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
9.5 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer's purchase order must be submitted by the Customer to Ace Hobby in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer's purchase order.
10 Privacy Act 1988 (Cth) ("Privacy Act")
To enable Ace Hobby to assess the Customer's application for credit, the Customer authorises Ace Hobby:-
10.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
10.2 To obtain a report from a credit reporting agency and other information in relation to the Customer's commercial credit activities, and
10.3 To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Ace Hobby to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer's credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4)of the Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
The Customer must notify Ace Hobby in writing within seven (7) days of:-
11.1 Any alteration of the name or ownership of the Customer.
11.2 The issue of any legal proceedings against the Customer.
11.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
11.4 Any change in the ownership of the business name of the Customer.
The Customer agrees that it shall be liable to Ace Hobby for all Goods supplied to the new owner by Ace Hobby until notice of any such change is received.
12.1 No warranties except those implied and that by law cannot be excluded are given by Ace Hobby in respect of Goods supplied. Where it is lawful to do so, the liability of Ace Hobby for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Ace Hobby.
12.2 The Customer acknowledges and warrants that it has relied on its own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by it to provide advice and assistance on the suitability of the Goods for specific purposes and procedures and, in this respect, shall indemnify Ace Hobby from and against any suit, claim, demand or compensation which, but for these Terms, the Customer may have had against Ace Hobby.
12.3 The Customer warrants to Ace Hobby that it is purchasing Goods as the principal and not as an agent.
13 Force Majeure
Ace Hobby shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Ace Hobby shall be paid immediately and, unless prohibited by law, Ace Hobby may elect to terminate the Agreement.
14 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of Ace Hobby all of the Customer's estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by Ace Hobby to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Ace Hobby and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
15 Failure to Act
Ace Hobby's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Ace Hobby's failure to exercise any right or remedy available under these Terms or at law, or Ace Hobby's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Ace Hobby's right to demand timely payment of future obligations or strict compliance with the Terms.
16 Legal Construction
16.1 These Terms shall be governed by and interpreted according to the laws of New South Wales and Ace Hobby and the Customer consent and submit to the jurisdiction of the Courts of New South Wales.
16.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.